The Run of His Life

by Jeffrey Toobin

  I had an unusually direct view of Shapiro’s dilemma. In May 1995, Mark Fuhrman filed a libel suit against me, The New Yorker, and Shapiro in connection with my original story about Fuhrman the previous year. (Fuhrman would drop his case during the week of the verdict.) Although Shapiro had generally steered clear of me after that issue of The New Yorker ran, the libel case started his competitive juices flowing, and we often talked about it in the courthouse hallway. In short order, however, Shapiro would turn these conversations into diatribes against his colleagues on the defense team, especially Cochran (even more than Bailey). One day during the presentation of the defense case, for example, Shapiro told me that Cochran had interrupted him when he was talking to a lawyer for one of the witnesses. “I’m shaking hands with this lawyer, and you know what he says to me?” Shapiro recounted. “He says, ‘We got no time for chitchat. We got to work now.’ ” Shapiro went on, “I’ve never been treated this way in my life. It’s like they want me to look bad. In front of the jury, they give me questions to ask, and they’re bad questions.” The heart of Shapiro’s complaints always returned, however, to publicity. “Johnnie keeps track of what show everyone is on. He watches everything. He doesn’t work. It’s unbelievable.” Shapiro did have a point about Cochran’s obsession with the media (which, of course, was matched by Shapiro’s). On September 7, for example, Cochran sent a memo to all the defense attorneys saying, “Effective immediately, per Mr. O.J. Simpson’s request, all media appearances must be approved by yours truly. There will be no exceptions to this policy.”

  Cochran and his allies, for their part, more than returned Shapiro’s disdain for them, and with perhaps even greater justification. On another day during the defense case, Shapiro’s fellow defense-team members caught him using a miniature Dictaphone in his pocket to record a meeting in the courthouse lockup among Simpson and his lawyers. As Shapiro later admitted, he was surreptitiously documenting these meetings so he could include them in the book he was planning to write about the case. Scheck and Neufeld, who believe strongly in the sanctity of the attorney-client privilege, were beside themselves with outrage at Shapiro over the tape-recording. On the rare occasions that Shapiro deigned to attend defense-team meetings, the atmosphere was poisonous.

  To their credit, the prosecutors did not turn on each other in the waning days of the trial, but they didn’t entertain any great hopes of victory, either. By and large, they felt doomed by even the small number of excerpts that Ito had allowed from McKinny’s tapes. Still, the prosecution put together a smashing start to its brief rebuttal case—one the increasingly stupefied jury seemed barely to notice (and would scarcely comment upon after the trial). The rebuttal case began with the one positive bit of fallout from Darden’s glove fiasco. Amateur photographers around the country began searching their files for photographs of Simpson wearing leather gloves at football games. Several found examples, which they sent to the prosecution in Los Angeles. The first, taken on December 29, 1990, at a Chicago Bears game, was the most striking. The glove not only had identical features to the Aris model recovered in 1994, but this glove also looked tight on Simpson’s hand, just as the evidence gloves had. Richard Rubin, the glove expert, returned to the stand to say that he was “100 percent certain” that the gloves in the photographs were those rare Aris Lights, style 70263.

  Neither side wanted to give the other the last word, so the case wound down, like a dying metronome, with each side calling a final few witnesses. The defense closed on a quasi-comic note, calling a pair of organized-crime informants, the brothers Larry and Tony “The Animal” Fiato. With their earrings and dyed hair, this duo looked like extras from a low-budget crime picture, but they actually served the defense cause very well.

  The Fiato brothers had worked as informants in an unrelated criminal case investigated by Detective Tom Lange, Phil Vannatter’s partner. In January 1995, just as the Simpson trial was getting under way, the Fiatos were preparing for their testimony in one of these other cases when they started chatting with Vannatter. The topic turned to the Simpson case and the detectives’ controversial decision to leave the murder scene and go to O.J.’s home on Rockingham. They claimed that Vannatter said, apparently sarcastically, “We didn’t go up there with the intention of saving lives. He was the suspect.”

  In a final day of testimony, September 19, the defense called four witnesses—Vannatter; Michael Wacks, an FBI agent who was present; and the two Fiato brothers—to testify about this conversation. All essentially agreed about what Vannatter had said, and all pretty much concluded that it seemed the detective had been joking. Yet the whole scene left a seedy impression of Vannatter in particular and the police as a whole. The defense succeeded, at the last moment, in raising a series of embarrassing questions. Was Vannatter’s long-questioned justification for going to Rockingham really true? What did he really tell the Fiato brothers? Why was the co–lead detective discussing the Simpson case at all with a pair of mafia informants? All these questions hung awkwardly in the air as the jury was about to get the case.

  Yet the prosecutors couldn’t leave well (or badly) enough alone. Rather than simply ignore the Fiato sideshow, the prosecutors decided to call one final, final witness—the last of the trial, and one who served rather well as an emblem for the futility of the government’s efforts in this case.

  On the morning of September 20, Marcia Clark called Keith D. Bushey, the ramrod-straight police officer who had served as the top LAPD administrator for the western quarter of the city in June 1994. Bushey testified that Detective Ron Phillips had called him at about 2:30 A.M. on June 13 to inform him that Nicole Brown Simpson’s body had been found. Bushey said that on hearing the news, he remembered that several members of John Belushi’s family had heard of his death through the news media. Bushey thought that was unfortunate so, he said, he ordered Phillips “to find O.J. Simpson just as soon as humanly possible and notify O.J. Simpson of his ex-wife’s death.” Clark thus wanted to use Bushey to convince the jury that Vannatter and the other detectives really had been telling the truth all along—that they went over to Rockingham to notify Simpson that his ex-wife had died.

  The imperious Bushey never knew what hit him on cross-examination. Johnnie Cochran understood the LAPD better than any of the prosecutors. He knew how the police groveled before celebrities. The sinister brilliance of his examination of Bushey—and, indeed, of his defense in general—was that he made the preferential treatment accorded Simpson look like a different, more nefarious, kind of singling out. Cochran knew that Bushey would have to lie—that he couldn’t admit that celebrities won special favors from the LAPD. So Cochran spun those lies to his client’s advantage.

  “Are you saying that the LAPD department in this case gave preferential treatment by sending four detectives to O.J. Simpson’s house in the early morning hours?” Cochran asked.

  “No,” Bushey replied. “First of all, I don’t like the word ‘preferential treatment.’ ”

  “Okay,” Cochran parried. “That was the word used by the prosecution.”

  “Well, I don’t care…,” Bushey answered.

  “You don’t like the word ‘preferential’ because on the side of the police car it says ‘protect and serve’ all the people?”

  “That’s correct.”

  “You’re supposed to treat all people alike, aren’t you?”

  “We tried to,” Bushey answered glumly.

  “And fair? You try?”

  “Sure,” said Bushey.

  Cochran found the heart of the issue a moment later when he asked, “In the course of your responsibilities that morning, were you more concerned about the department’s image than you were about investigating these very brutal murders?”

  “Certainly not,” said Bushey, but the truth was very much the opposite.

  The prosecution thus unaccountably completed its presentation in the O.J. Simpson murder case with a pious, double-talking fixture of the LAPD brass. And that might not hav
e been even the worst of it. For in addition to everything else, Keith Bushey was a dead ringer for the most hated man in black Los Angeles—the former chief of the Los Angeles Police Department, Daryl Gates.

  From the day he was hired in the case, Cochran teased the press with the possibility of Simpson testifying in his own defense. The lawyer said repeatedly that he wanted O.J. to testify and that O.J. himself wanted to testify, but these comments were just public relations. With the exception of Bailey, who actually did want Simpson to take the stand, no one on the defense team ever took the idea very seriously. Bailey thought, with good reason, that Simpson would have no chance of resuming anything like his former life unless he addressed the charges from the witness stand. Cochran and Shapiro were more worried about losing the case, and their view prevailed.

  Still, even in jail, Simpson was as obsessed as ever by his image, and Cochran found an opportunity for him to put his point across. As part of the formalities of ending the case, Ito had to ask Simpson on September 22 whether he waived his right to testify. Cochran, in turn, requested that Simpson be allowed to make “a brief statement” as part of his waiver. Even though the jury was not present, Clark objected, saying that “this is a very obvious defense bid to get material admitted through those conjugal visits that is not admitted in court.… Please don’t do this, Your Honor, I beg you.”

  Cochran replied with great indignation. “There seems to be this great fear of the truth in this case,” he said. “This is still America. And we can talk. We can speak. Nobody can stop us.” (A rather odd complaint on behalf of a client who had already written a bestselling book from jail.) Ito caved, and Simpson rose to deliver a sound bite for the evening news.

  “Good morning, Your Honor,” he said. “As much as I would like to address some of the misrepresentations made about myself and Nicole concerning our life together, I’m mindful of the mood and the stamina of this jury. I have confidence, a lot more it seems than Ms. Clark has, of their integrity, and that they’ll find—as the record stands now—that I did not, would not, and could not have committed this crime. I have four kids—two kids I haven’t seen in a year. They asked me every week, ‘Dad, how much longer?’ ”

  This was more than even Ito could take, and he cut Simpson off with a curt, “All right.”

  Simpson said, “I want this trial over.”

  Even this brief monologue offered a useful insight into Simpson’s character. Throughout the trial, his obsession remained the “misrepresentations” about his relationship with Nicole, especially the notion that he was imploring Nicole to come back to him. Typically, too, he attributed his decision not to testify to the “mood and stamina” of the jury, when the real reason had more to do with his lead lawyers’ belief in his guilt. The statement was, in short, another snapshot of Simpson’s narcissism.

  Tuesday, September 26, 1995, broke chilly and drizzly. During the fall and winter of the previous year, Southern California had been afflicted with some of the coldest and wettest weather in recent history. A normal spring and summer, hot and dry, had followed. Now, on the day that summations were to begin, it appeared that the seasons had changed once more. Jury selection had commenced 365 days earlier. The trial of O.J. Simpson had taken one year.

  Even before she uttered her first words to the jury, Marcia Clark was exhausted, with large half moons of purple under each eye. She looked emaciated beneath her simple beige jacket. The chicken salads delivered to her office every lunch hour had often gone untouched. Not so her silver cigarette lighter, the one inscribed with the words TRUTH AND JUSTICE. For all these months, she had fueled herself with an unending relay of Dunhills.

  First, Clark thanked the jury, which was customary but not, for her, heartfelt. She and her colleagues had traveled a long way since the optimistic close to jury selection. Over the course of the trial, Clark had felt no warmth from this group, no sympathy for the victims, no core of emotional revulsion at the murders. Clark’s instincts about juries had not entirely deserted her, even if enlightenment came far too late. She had come to see that these were fearful jurors, more concerned about the reaction to their verdict than about reaching the right one. They took few notes; they never smiled or frowned; they gave no sense of themselves away—they were too frightened to reveal anything. As the race issue took over the case, the prosecutors knew above all that they needed a courageous jury, and they sensed—correctly, as it turned out—that they didn’t have one.

  Clark’s first words about the facts of the case included a revealing slip of the tongue. “Let me come back to Mark Fuhrman for a minute,” she said. Actually, she had not mentioned him before, so she was not really coming “back” to him. It just seemed that way, for the defense had succeeded so completely in making Fuhrman the center of this case. Like it or not, everyone in this trial was always coming back to Mark Fuhrman.

  “Did he lie when he testified here in this courtroom saying that he did not use racial epithets in the last ten years?” Clark continued. “Yes. Is he a racist? Yes. Is he the worst LAPD has to offer? Yes. Do we wish that this person was never hired by LAPD? Yes. Should LAPD have ever hired him? No. In fact, do we wish there were no such person on the planet? Yes.

  “But the fact that Mark Fuhrman is a racist and lied about it on the witness stand does not mean that we haven’t proven the defendant guilty beyond a reasonable doubt, and it would be a tragedy if, with such overwhelming evidence, ladies and gentlemen, as we have presented to you, you found the defendant not guilty in spite of all that, because of the racist attitudes of one police officer.”

  This immediate and categorical denunciation of Fuhrman was probably the best Clark could have done under the circumstances, but it also underlined how the racial issue paralyzed the prosecution. Yes, Fuhrman was racist, but Simpson was still guilty. The yes/but formulation represented the dominant motif of the summation that followed over the next five hours. Yes, the investigation had been imperfect; yes, the criminalists made mistakes—but the evidence led only to this defendant. Clark was rushed and a little scattered as she attempted to pull all the complex strands of evidence together, but still she delivered an adequate, professional summation—and a persuasive one for a jury willing to listen.

  In one passage, Clark drew on the vast changes the trial had wrought in her own life. She thought the jurors might wonder just what Simpson had been doing in the narrow passageway behind Kaelin’s room, the place where he knocked into the air conditioner and dropped the glove. “You are thinking, why not drop it in a Dumpster on the way home?” she said. But Clark suggested that this wasn’t possible. “He can’t. He can’t, because he is famous. If someone sees him hanging around near a Dumpster on that night of all nights, they are going to recognize him, and he is going to have a witness.” Clark came up with this theory because now she, too, was noticed everywhere she went, and she believed that Simpson, who had far more experience in being famous, had even factored his celebrity into his plans for murder.

  In her fury at Darden after the glove demonstration, Clark had decided for a while that she didn’t want him doing any part of the summations. She would do it all herself. But Clark’s anger cooled, and she ultimately ceded the domestic-violence portion of the case to him. Ito had decreed that there would be evening sessions during closing statements, so Darden rose to address the jury at shortly after seven in the evening.

  Television, of course, was sending the proceedings around the world, but this first nighttime session of the case gave the courtroom a curious intimacy. We were, after all, nearly the only people in that vast and sterile building, and the uniqueness of the experience gave the room a strange glow. Chris Darden captured that mood and that moment. This case—chiefly Cochran’s race-baiting—had taken its toll on Darden. The public display of his shortcomings as a lawyer had pained him as well. Darden had a great deal of help with this summation; it was written chiefly by fellow prosecutor Scott Gordon and a private stalking and domestic-violence expert named Gavi
n de Becker. But just as Darden deserved the blame for his several failures in that courtroom, so too did he earn the credit for this triumph.

  Darden used a perfect metaphor for the Simpson marriage: a burning fuse. He noted that the defense had argued that “just because” there was marital discord, “it doesn’t mean anything.… Well, this isn’t a ‘just because’ issue. This is a ‘because’ issue. It is because he hit her in the past. And because he slapped her and threw her out of the house and kicked her and punched her and grabbed her around the neck.… And it’s because he used a baseball bat to break the windshield of her Mercedes back in 1985. And it’s because he kicked her door down in 1993.… It’s because of a letter he wrote her … June the sixth, talking about the IRS. It’s because he stalked her.” Darden then took each of these domestic-violence incidents in chronological order and punctuated them with the phrase “And the fuse is burning.” He played the pair of 911 calls—the wordless slaps from 1989, and the terrified “He’s going to kill me!” from four years later.

  Darden closed for the night by recalling one of the briefest witnesses in the trial—the district attorney’s investigator who drilled open Nicole’s safe-deposit box after her death. There wasn’t much in there: her will; letters of apology from O.J. after his 1989 conviction; and the photographs of Nicole’s beaten face from that incident. But Darden asserted that Nicole had a larger purpose for preserving those few items in the way she did. “She put those things there for a reason,” Darden said quietly. “She is leaving you a road map to let you know who it is who will eventually kill her. She knew in 1989. She knew it. And she wants you to know it.”