The Search for Justice (20 page)

Across the room from the jury sits the bailiff at a desk, right next to the defense attorneys. Just behind the bailiff is
a door that leads to the prisoner lockup area.

The lockup, where defendants in custody wait as their case is being called, is a small holding cell that serves two courtrooms.
A dank and somewhat foul-smelling room, it has a toilet with no seat, a sink with no soap, and benches carved with the most
profane graffiti imaginable. Since O.J. was in a special keep-away status for his own safety, no other defendant ever shared
the holding cell with him. If the lawyers needed to speak with him, he would be taken to the adjacent attorney room, which
was about five feet square, furnished with two chairs and a small table.

There ’s a steel sliding door that allows entrance into the cell, and just beyond it is a small foyerlike room for four people,
with another steel door behind that for added security. Once inside the holding-cell area, attorneys must then pound on the
wall to be allowed back into the courtroom.

From the first day, courtesy of Judge Ito and the sheriff ’s department, we arranged that O.J. would be able to change from
prison garb into civilian clothes. He would be brought to court in his jail blues and tennis shoes and go into the second
five-by-five room to change. Bob Kardashian brought O.J. ’s clothes in each morning—two suits and four or five ties to choose
from. O.J. was always concerned about looking sharp, and just before we ’d go into the courtroom, we ’d check that his tie
was straight and his collar down. Guy Magnara, the sheriff ’s deputy in charge of Ito ’s courtroom, who was unfailingly kind
and pleasant, would come back into the holding cell and tell us when the judge was ready to enter the courtroom. At that point,
the attorneys would walk into the courtroom, and O.J. would come in behind us. He was handcuffed and wore a steel chain around
his waist, but these restraints would all be removed before he entered the courtroom, as if to give the appearance that he
was not in custody.

Our motion, requesting that the prosecution give us half of their blood and tissue samples, so that the defense could run
its own DNA tests, was scheduled to be heard on July 25, Keno drove us all—Barry Scheck, Johnnie Cochran, Sara Caplan, and
me—to court for the 9:00
A.M
. hearing. As was now routine, O.J. joined us at the table, taking notes on his legal pad and asking the attorneys questions
throughout the hearing.

The hearing, our first since Judge Ito had been assigned the case, was three hours long and contentious from the first five
minutes. Marcia Clark was strongly opposed to sharing any of the blood-sample evidence at all, constantly referring to it
as “the People ’s evidence” and suggesting that if a portion of it was given to the defense for its own testing, it would
“deprive the People of their right to be fair in the prosecution.”

Because prosecutors are the representatives “for the People” they often operate with a certain arrogance, speaking with the
moral authority that they, and only they, carry the torch of justice into the courtroom. It is
their
courtroom, where
their
evidence is presented, and where defense attorneys (and defendants) often seem to be admitted grudgingly, like distant and
somewhat disreputable cousins. I was a prosecutor for three years, so I know where the attitude comes from and how easy it
is to acquire. It ’s my experience, however, that arrogance never serves anyone well; in this case, the prosecutor ’s arrogance
would prove to be an important factor for the defense.

We countered Clark ’s objection by arguing that the forensic evidence belonged to the court, and that if these tests were
to have any validity, we needed equal access. Under California law, the defense is entitled to perform its own tests—
if
the sample is large enough to be divided. Initially Ito agreed and granted our motion. Clark then came back with an impassioned
plea that evidence “was going to be taken out of our hands forever… taking away prosecution evidence and giving it to the
defense.”

After some consideration, Judge Ito reversed himself and ruled that our defense expert, Dr. Edward Blake, could observe the
prosecution ’s testing (at Cellmark Diagnostics lab in Germantown, Maryland) and could also “cut” and keep 10 percent of each
sample in case more testing was necessary in the future. Our testing, if we ultimately chose to do it, would be performed
at a private lab in Northern California supervised by Dr. Blake, a respected forensic scientist and close colleague of Gary
Sims, the senior criminologist at the California Department of Justice.

And so the pattern began. Ito, in his attempts to remain fair, began his battle with indecisiveness. If the prosecution screamed
loud enough, they would not only get a rehearing but possibly a reversal. It ’s certainly no disgrace when judges reverse
themselves upon finding their rulings in error, but over the term of the trial, Ito ’s willingness to reverse looked like
indecision. On the other hand, with the television cameras in the courtroom,
Ito was charged with making instantaneous decisions in front of the watching world. And because of the rules of judicial conduct,
he didn ’t have the luxury that the rest of us did of later explaining and defending decisions that were often criticized
and always second-guessed.

I was glad that Barry Scheck was with us during this session, although his style was a little more in-your-face than I might
’ve wished. Ito took great stock in intellect and legal ability, and he immediately recognized Scheck ’s expertise in this
complicated field. Marcia Clark appeared to be paying careful attention to Scheck ’s comments as well. He would prove to be
even more formidable in court.

After the trial had ended, Scheck recalled two things about this, his first encounter with Judge Ito. One was Ito ’s comment
that while he knew this was going to be a hard-fought battle, he also knew that we would all be very professional and responsible.
He hoped, the judge said, that we would all be able to go out to dinner together once the trial was over; in fact, a restaurant
in Pasadena had already volunteered to host us.

The second thing Barry remarked upon was hearing Ito say, “I ’m glad I have this case.”

“Most judges might have viewed this particular trial as an awesome responsibility and been a little apprehensive,” Scheck
recalled. “He seemed so confident, so energetic about it.”

While in the courthouse presenting that first DNA motion, we heard a story that after my cross of Dr. Golden the previous
week, the medical examiner allegedly brandished something that seemed to be a gun in the coroner ’s office, yelling, “This
is all you need to take out six or seven lawyers!” I didn ’t know whether to be amused or appalled.

Over the past few years, jury consultants have been used consistently in major civil cases without much knowledge or fanfare;
it ’s only recently that their talents have become utilized in criminal cases as well. First, most clients can ’t afford the
luxury
of paying for consultants, and second, criminal lawyers fancy themselves experts in being able to read people and pick their
own juries. This is especially true on the prosecution side. I ’ve heard many prosecutors, when offered the service of experts,
say, “I don ’t need anybody to tell
me
how to pick a jury.” In fact, my guess is that ’s what went on with the district attorney ’s office in the Simpson case.
Although they had the help of DecisionQuest ’s Don Vinson, one of the leading experts available, they didn ’t seem to pay
much attention to what he had to say. During jury selection, Vinson was in the courtroom for only a couple of hours; after
that, we didn ’t see him again. We heard reports that he ’d advised the prosecution against building their case on domestic
abuse, cautioning them that black women jurors often have conflicting, defensive, and even occasionally protective reactions
when a black man is being accused of that behavior.

When we began interviewing for our own jury-selection experts, I became most impressed with Jo-Ellan Dimitrius, who came in
the door with computerized exhibits and a thorough knowledge of current jury-pool demographics. We had asked for written proposals
and cost estimates from everyone we spoke with, and I knew that cost would be a factor in who we ultimately chose. But I was
going to hold out for Dimitrius.

Tuesday morning, July 26, we held our first major roundtable meeting for the entire defense team: Cochran, Uelmen, Pavelic,
McNally and McKenna, Sara Caplan, Shawn Chapman (an associate in Cochran ’s office) and Carl Douglas (a junior partner), and
Barry Scheck. Dr. Lee came in later, and we spoke with Baden and Dershowitz by speakerphone. The meeting lasted two and a
half hours, and its purpose was to draw up a detailed battle plan. From the investigators, we needed minute-by-minute timetables,
starting with Nicole ’s dinner at Mezzaluna and going right up to when O.J. ’s letter was read by Kardashian, including O.J.
’s phone calls, Kato ’s phone calls, the Browns ’ phone calls to Nicole, and calls to anyone else that any of the key figures
might ’ve talked to during that time. We
needed background information on essential witnesses, including everyone who had testified in both the grand jury and preliminary
hearing, with a special emphasis on Detective Fuhrman. We needed interviews from all known and potential witnesses on Bundy
and Rockingham, in Los Angeles and Chicago, as well as those on the flights to and from Chicago. Of major concern was O.J.
’s purchase of a stiletto knife just weeks before the murders. And I was additionally concerned about the story we ’d heard
that the witness to the dog “plaintively wailing” on the night of the murders reportedly worked at one time as a
National Enquirer
reporter.

After the investigators had left the office, the lawyers discussed the DNA evidence and what, if any, benefits would be gained
from observing the prosecution ’s tests at Cellmark. Henry Lee was adamant that just observing would be of no benefit at all;
on the other hand, not doing it might reflect negatively on us in front of the jury. The choices came down to these two: We
could get a blood split so that we could have our own samples and test them if we decided that it was warranted; or we could
forego testing completely, and instead challenge the collection and preservation procedures that the L.A.P.D. lab had performed,
and the subsequent contamination of these samples.

At noon on Wednesday, July 27, I received word that Judge Ito was holding an emergency hearing that day regarding the prosecution
’s request to set aside his order of Monday which would allow our experts to cut a sample. It seemed that Cell-mark labs had
written a letter objecting to that ruling. “Our laboratory policies and procedures preclude anyone other than the appropriate
Cellmark staff from doing any analysis in our laboratory,” the letter stated. “We strongly prefer that Dr. Blake and/or Dr.
Lee observe the cutting…. This avoids the necessity of a transfer of evidence custody and control.”

I notified the court that even though we were given the opportunity to observe, we declined. “The guidelines are totally unmanageable,”
I said. “We won ’t be participating.” It
wouldn ’t benefit us or the jury, we decided, and would be a waste of everyone ’s time.

Once again, I was aware of Clark ’s growing impatience with me. My unwillingness to flirt with her or be less than businesslike
made her angry. The invective was getting sharper, the expression on her face was frequently disdainful or disgusted. Her
remarks were running to things like “Shapiro ’s being outrageous, unethical, unprofessional. I have never seen such conduct
from a lawyer.” We weren ’t, I suspected, going to walk hand in hand out of the courtroom when this was all over.

Later that afternoon, I had a conversation with Don Ohlmeyer, the West Coast president of NBC and close friend of O.J. ’s
who had visited him often at the county jail. After one recent visit, during which they ’d had a long and impassioned discussion
that had convinced him that O.J. was innocent, Ohlmeyer was worried that their conversation had been overheard.

It wasn ’t the first problem we ’d had with the way the visiting area was set up. The deputies stood barely five feet away,
on O.J. ’s side of the glass. I was never sure whether conversations were “accidentally” overheard or not, but I was almost
certain that real confidentiality was nearly impossible in that space. A few months later, we would grapple with this issue
again, when Roosevelt Grier, the former football great who had become a Christian evangelist, visited O.J. on a Sunday afternoon
in November. At that point, they ’d been meeting regularly, reading the Bible and discussing private matters; and on this
particular day, O.J. spoke quite emotionally to the large and gentle man who had become, in his opinion, his spiritual advisor.
The conversation was overheard by a sheriff ’s deputy, who then reported it to the prosecution—who then alleged that by virtue
of raising his voice, O.J. had waived his right to confidentiality. They then went so far as to subpoena Rosie Grier in an
attempt to get him to testify as to the content of his conversations with O.J., which he appropriately declined to do.