“And you believe him?” Couric asked.
“And I believe him,” Cochran replied. “I believe him. Absolutely.”
Couric pursued the issue, asking, “A hundred percent, in your heart, that he is not guilty?”
Cochran was adamant. “In my heart, I believe that, absolutely.”
10. GROUP THERAPY
At first, Cochran made a seamless transition onto the defense team. At the arraignment on Friday, July 22—when Simpson said he was “absolutely, 100 percent not guilty”—Judge Cecil Mills announced that he had assigned the case for trial to Judge Lance A. Ito, of the superior court. Because Ito’s wife, Margaret York, served as a captain in the LAPD, Mills gave the defense the opportunity to have Ito removed from the case with no questions asked. But Cochran and Shapiro agreed that Ito would suit them fine. Ito brought the parties together in his courtroom for the first time the next Monday.
The defense team regarded Ito as about as good a choice as they could expect. Since Jerry Brown had left the governorship of California in 1978, the Republicans who followed him had named a steady stream of conservative law-and-order ex-prosecutors to the state’s trial and appellate courts. Ito seemed to reflect this trend. After spending virtually his entire professional career as a deputy district attorney in Los Angeles, he had been named to the municipal court bench in 1988 by Governor George Deukmejian and promoted to the superior court the following year. But unlike many of his colleagues, Ito had a reputation as a judge who could be reasoned with, one who would at least listen to the arguments of defense lawyers—especially these defense lawyers. Cochran and Shapiro knew him well. During his own stint in the D.A.’s office, Cochran had supervised Ito. Shapiro, ever the networker, had also crossed paths with the judge any number of times over the years. When, shortly before the murders in Brentwood, the Century City Bar Association named Shapiro “Defense Counsel of the Year” for 1994, Ito sent him a note calling the award “well deserved and overdue.” (Shapiro explained to F. Lee Bailey that he had approved the judge “because Lance Ito loves me.”)
Ito was also known as an energetic judge, and this was important, because speed remained the defense’s objective. Both Shapiro and Cochran saw Simpson’s popularity as a dwindling asset, and they viewed an expeditious trial as imperative. The judge obliged by scheduling jury selection to begin sixty days hence, on September 20. By California standards, Ito’s schedule amounted to warp speed; in ordinary circumstances it often took one or two years for a complex murder case to come to trial. But these delays invariably came at the request of defendants who hoped the cases against them would grow stale. In the Simpson trial, by contrast, the defense lawyers believed that additional time would only allow the prosecution to refine its scientific evidence against their increasingly unpopular client.
For their part, Clark and Hodgman’s strategy never changed much after the preliminary hearing. Using Kato Kaelin and Allan Park, they would prove first that Simpson had had the time and the opportunity to commit the crimes—establishing, through Kaelin, that Simpson was alone after about 9:40 P.M. on June 12, and showing, through Park, that the house at Rockingham appeared empty between 10:35 and 10:55 P.M. Before the jury, the prosecutors would add the specter of domestic violence to establish Simpson’s motive. The core of their case would always remain the physical evidence tying Simpson to the murder scene and the victims to him: hairs and fibers, shoe prints, and, above all, blood. The prosecutors regarded the defense’s rush to trial as an inconvenience, but by both law and custom, government lawyers almost never seek delays. After charging someone with a serious crime, the theory goes, prosecutors are obligated to put up or shut up. Regardless of when Ito scheduled the trial, Clark and company vowed to be ready.
In the summer months before jury selection, the defense, too, did little more than elaborate on the themes it had struck at the preliminary hearing. Of course, the defense lawyers never had any evidence (or hope of finding evidence) that someone other than Simpson had committed the murders. That left them with one option: chipping away at the believability of the government’s case. For this, they had several approaches. First, they would attack the government’s chronology—its “time line”—in an attempt to show that Simpson did not have time to commit the murders. Then they would allege that the LAPD had collected the blood and other physical evidence in a shoddy manner, thus reducing the probative value of the tests on that evidence. And the defense team would allege, as Shapiro did in his interview with me, that at least one police officer had engaged in a conscious effort to frame Simpson for the crimes. These approaches all constituted variations on the principal theme of misfeasance, malfeasance, and nonfeasance by the LAPD, and the defense lawyers sought to elaborate on them in their initial appearances before Judge Ito.
As would so often be the case in this trial, each side had both legal and public relations agendas in the early weeks in superior court. Virtually all of the motions the defense filed over the summer asked Judge Ito to redress some perceived wrong that had been inflicted on its client by law enforcement. These ranged from renewing the claim that the LAPD had illegally searched Simpson’s home shortly after the murders to asserting that the prosecution had improperly failed to share blood samples with defense-team scientists. As the defense well knew, most of these entreaties were doomed to failure. Republican-appointed judges in California, as well as on the United States Supreme Court, have greatly narrowed the rights of criminal defendants in recent years, and thus judges scarcely ever suppress evidence. But in the unique circumstances of the Simpson case, the defense could still “win” in losing these motions. The court hearings over the summer raised a continual drumbeat of accusations against the police—amplified by intense media coverage—for the benefit of prospective jurors in the case. The defense even made a little progress with Ito. Although the judge declined to suppress the fruits of the police search of Simpson’s house on Rockingham, Ito excoriated Detective Vannatter in making his ruling. He said that Vannatter’s error-filled affidavit (in which he wrote that the substance on Simpson’s Bronco was confirmed to be blood and that O.J. had gone to Chicago unexpectedly) was “at least reckless”—words that the defense was only too pleased to see widely reported in the news media.
The defense lawyers also brought an ample load of cynicism to their early pleas before Judge Ito. Immediately after the arraignment, for example, they filed an “emergency” motion asking Ito to suspend all prosecution DNA tests on the blood in the case. They said they wanted a portion of all the samples so that defense DNA experts could conduct their own tests on the evidence. The issue raised difficult technical questions about how much blood the various laboratories needed to perform the different DNA tests, and Ito was plainly feeling his way as he went along, admitting at one point that he was “a political science major who never set foot on the south side of the campus [where the laboratories are] at UCLA.” Still, after days of complex hearings over what became known as the “split” issue, Ito reached a reasonable accommodation for both sides. The prosecution could conduct its tests as scheduled, but to the extent it was possible, the judge ordered that the government reserve 10 percent of each sample for the defense to do its own DNA experiments.
Months later, however, it became clear that, for all its anguished demands for samples of the blood, the defense never did do any of its own refined DNA testing. Raising the “split” issue was simply another excuse to portray its client as a victim of official misconduct, a mistreated defendant denied access to the evidence in the case. Indeed, from this small episode, one can reasonably conclude that the defense lawyers did not want the blood at the crime scene tested because they knew what the results would be.
By summer both sides had largely set their basic trial strategies. Each side then turned, in its own way, to the next and most important challenge on the horizon: how to identify and select the jury that would be the most receptive to its case.
As ever, Shapiro went for the best
person he could find. He hired Jo-Elian Dimitrius, a jury consultant based near Los Angeles, whose previous clients included the defendants in the McMartin Preschool case and the police officers accused of beating Rodney King. (As for her work for King’s assailants, Shapiro worried about results, not ideological purity.) Shapiro asked Dimitrius to conduct all the surveys and focus groups she needed to, and then promised to consult her closely when it came time to select the jurors for trial.
The prosecutors, in contrast, followed a more tortuous route to jury selection. Their efforts in this critical area reflected, in microcosm, the problems that beset them from the start—the consequences of their starchy insistence on high ethical standards; their arrogance; their recurring bad luck; and above all, their inability to surmount the ever-present problem of race. In particular, jury selection showcased Marcia Clark’s peculiar mix of virtues and flaws, which in the end combined to render her and her colleagues spectators to the trial unfolding around them.
Shortly before jury selection began, the prosecution honorably forfeited one advantage it might have had as the case proceeded: Garcetti’s office announced it would not seek the death penalty. “Death-qualified” jurors, as they are known—that is, jurors who have stated that they are willing at least to consider imposing the death penalty—are well known for being more likely to convict as well. As a defendant without an extensive criminal past, Simpson was an unlikely candidate for the death penalty, but the prosecution did yield an important strategic advantage when it excluded even the possibility.
In ordinary circumstances, government lawyers do little to prepare for jury selection in a criminal trial. Prosecutors’ offices almost never have the funds to hire jury consultants, so the lawyers generally rely on their experience and gut feelings to do the best they can. All along, Marcia Clark thought a business-as-usual approach would best serve her team. One can see why. Prosecutors tread on dangerous ground when they make decisions about jurors based on generalizations about their ethnic backgrounds—which is, after all, the reason jury consultants conduct surveys and focus groups. In crude form, such actions by prosecutors are flatly unconstitutional. Since the Batson v. Kentucky case, in 1986, the Supreme Court has held that prosecutors may not systematically remove prospective jurors from a criminal case solely because of their race. Batson and some cases that have followed it leave prosecutors considerable leeway on what constitutes racial bias in jury selection, but the subject still gives honorable prosecutors pause. By the summer of 1994, public surveys had already shown profound racial differences in attitudes about the Simpson case. Why, Clark wondered, bring that sort of divisiveness right into the prosecution camp?
Besides, Clark had her own ideas about jury selection. While trying many cases in the Criminal Courts Building, she felt she had always developed a special rapport with one group in particular: black women. In case after case, she won their smiles, their nods, their sympathy. After trials, Clark would often speak to jurors, and the ones who always gave her the warmest greetings were the African-American women. She even had a fan club of sorts, a group of former jurors, all black women, who wrote her letters and kept in touch well after their trials had ended. Clark felt that these women—her women—would respond to the story she would tell of Nicole Brown Simpson’s death. After all, African-American women were disproportionately the victims of domestic violence. They would understand how Simpson’s violence had built inexorably to murder. Clark didn’t need any outsider to tell her what she felt in her trial lawyer’s bones.
Yet a consultant did appear—and not just any jury consultant. In 1976, Donald Vinson was a respected if obscure marketing professor at the University of Southern California when he received a surprise phone call from lawyers at Cravath, Swaine & Moore. The New York firm was representing IBM in a complex antitrust case, and they wondered if Vinson might apply some of his work in the social sciences to the art of jury selection. Spurred by Cravath, Vinson invented a new field. Using the most sophisticated research techniques—including focus groups, survey research, and even the hiring of “shadow jurors,” who would sit in court and give lawyers day-by-day critiques of their efforts—Vinson transformed the way well-heeled trial lawyers prepare for court. He quit USC, founded a company called Litigation Sciences, developed it into the leader in the field, and sold out for many millions of dollars to the Saatchi and Saatchi advertising agency in 1987. When his non-compete agreement expired in 1989, Vinson started from scratch and created a new firm, DecisionQuest, which he promptly transformed into the new industry leader. By the time of the Simpson trial, Vinson employed two hundred people and had an itch for bigger challenges and a wider stage.
Actually, the hankering had started a little earlier. Vinson had been appalled in January 1994 when the first trial of Lyle and Erik Menendez had ended in hung juries. Immodestly perhaps, Vinson felt this failure of the district attorney’s office reflected, at least in part, government prosecutors’ lack of access to experts like himself. Vinson felt that even a temporary escape of such obviously guilty figures as the Menendez brothers brought the whole judicial system into disrepute. He and his friend John Martel, a prominent civil lawyer in San Francisco, discussed the situation and decided to volunteer their services for the next Menendez trial. In March 1994, the two men met with Gil Garcetti and David Conn, who would be leading the retrial, and the prosecutors accepted Vinson’s offer. After an initial round of focus groups, both Garcetti and Conn immediately became boosters of Vinson’s work, and they touted him to Clark. Vinson was game for another pro bono project, and Clark reluctantly agreed to see what he had to offer.
The first test came on July 23, 1994, when Vinson organized a focus group at the Plaza Research Center, an anonymous-looking office building near Los Angeles International Airport. DecisionQuest recruited ten “jurors” for what Vinson called a “mock trial.” Clark had videotaped a twenty-minute version of her opening statement in the trial, and Bill Hodgman, play-acting the part of one of Simpson’s lawyers, had taped a statement on behalf of the defense. The plan was to play both tapes for the “jurors” and listen to their reactions. (Skittish about the process, Clark thought the experiment might leak and asked that her tape not be played. Instead, while the mock jury waited, John Martel listened to Clark’s tape and then paraphrased it for a camera, so the group actually heard Martel for the prosecution and Hodgman for the defense.)
Clark, Hodgman, and Garcetti watched the mock jurors from behind a pane of one-way glass, and what they heard astonished them. DecisionQuest had recruited a diverse panel—five men and five women; six whites and four blacks—and everyone expected some ethnic correlation to the results. But the racial divide, in this test at least, was stark and overwhelming: whites for conviction, blacks for acquittal. What was more, the partisans on both sides held their views passionately. Following the initial votes, Vinson spoke with the black panel members in an effort to learn what might change their minds about Simpson’s guilt. As an experiment, he asked them to change several assumptions about the facts of the case: first, to assume that it was 100 percent certain the blood to the left of the shoe prints at Bundy was that of O.J. Simpson; second, that scientific tests on the glove at the crime scene positively identified the skin oils on the inside as Simpson’s. This was practically a directed verdict of guilty. No matter. Three of the four blacks still said they would vote not guilty.
There was more. Vinson questioned the black women on the panel closely about the issue of domestic violence. He asked them to assume that Simpson had beaten Nicole and that he had threatened and stalked her. Their reactions were uniform:
“In every relationship, there’s always a little trouble.”
“People get slapped around. That just happens.”
“It doesn’t mean he killed her.”
Clark didn’t buy it—not the process, not the answers, and not Vinson. A doughy man with trim gray hair, a Ph.D. who liked being called “Doctor,” Vinson spoke with a quiet assurance
that his words were worth the millions that major corporations and law firms paid for them. Clark found him a condescending snob. Vinson thought little better of Clark, regarding her as a narrow-minded civil servant who preferred courthouse bromides to solid information. Neither was entirely wrong about the other, but Clark’s failure to separate the message from the messenger would have disastrous consequences for her case.
Prodded by Garcetti, who remained a fan of Vinson’s, Clark agreed to a more detailed follow-up to the July 23 focus group. Understanding Clark’s fear of leaks in the frenzied atmosphere of Los Angeles, Vinson proposed that they move their next research session out of the city, to a place that was demographically comparable to the site of the trial. Phoenix seemed about right, he said. Vinson would even arrange for a private plane to whisk Hodgman and Clark out of the city secretly so they wouldn’t have to worry about reporters learning of their trip. The prosecutors passed on the plane, but agreed to go to Phoenix and hear more about how prospective jurors might react to their case.
The Run of His Life Page 22