Without a Doubt (23 page)

“Stand down, partner,” he said. “We missed our flight.”

Man, did I feel stupid.

The airline gave us its conference room, where we spent a little time going over prospective presentations. Then we napped. The pace of this thing was sapping both of us.

When at last they called our flight, we were making our way wearily to the gate when I heard someone call my name.

“Do you ever read the
National Enquirer?
” the disembodied voice asked. I was about to say, “Are you crazy?” when I saw a guy with cameras slung around his neck. The tabloids! Somebody had dropped a dime on us. Bill and I turned and ran all the way to the gate.

“It’s over,” I told him. “News’ll be all over the place in about five minutes. They couldn’t have sent us on a private plane?”

“Stupid,” Bill muttered. “Just plain stupid.”

When we landed in Phoenix, I spotted the burly bearlike form of Frank Sundstedt, who’d arrived in Phoenix early and was now waiting for us at the gate. We told him about the reporters.

“How about a disguise?” he asked, only partly in jest.

“Hell,” I told him, “I’ll wear dreadlocks if you think it will help.”

On the way to the hotel, we nipped into a drugstore and I picked out a pair of clunky reading glasses. I looked at myself in the little round mirrors clipped to the top of the rack. Great! Pistol-packing nerd. I kept my head down as we entered the hotel where Vinson had booked our rooms. Frank went to check on our reservations. They’d been booked under our real names. Swell. Reporters had been calling the hotel asking about us. Once again, we’d been made.

That was it. There would be no mock jury. The only thing we could do was to turn around and go home.

God damn this case
, I thought. I’d missed a night at home for this? I would have loved to be singing lullabies right now. You wouldn’t catch
me
humming Brahms. It would probably be something more like “Angel Baby.”

Bill, Frank, and I met Vinson for dinner at a restaurant near the hotel.

“It’s over, Don,” I said. “Call it off. The press is all over us.”

“No, no, no,” he protested. Vinson, I suspected, could see his claim to glory as guru to the Simpson prosecutors slipping through his fingers. He argued. He cajoled. He begged us to reconsider. I cast a glance Frank’s way. I could see that he, too, was hoping to salvage something from this debacle. After all, seventeen recruits were due to arrive tomorrow morning at a conference room in the hotel. I suggested a compromise.

“Why don’t you just go in and ask them what they think of the case so far? Ask them what they think of the witnesses, the evidence. Maybe even what they think about the lawyers. But no mock trial. No ballots. No verdicts.”

Vinson entertained this proposal. I could see that Frank and Bill were warming to it. Finally, we all agreed that Don would chair a discussion by a panel that had now been officially downgraded from “jury” to “focus group.” Bill, Frank, and I would watch on a TV monitor in an adjoining room.

I crawled back to my room that night, already feeling the strain of battle fatigue. I looked at the clock. Four A.M. I’d get only about four hours of sleep before I had to be up and going again. I turned out the light and was asleep before my head hit the pillow.

The phone was ringing. I reached blindly for the receiver.

” ‘Lo,” I croaked.

“Marcia, you’re late.” It was Frank speaking in soft, urgent tones. “They’ve already started—you’d better get down here.”

I squinted at the digital radio by my bed. Nine A.M. I’d forgotten to set the damned alarm!

I pulled on a pair of leggings and boots, threw on a shirt, and, grabbing a legal pad and a few binders with case reports, ran out the door. I quietly let myself into the viewing room and found a seat next to Bill. Vinson was on the monitor. He sat at the mouth of a U formed by conference tables. The seventeen panelists were seated around it. The breakdown, as I recall it, was about nine blacks or Hispanics and eight whites. Most of the blacks were women.

“What did I miss?” I whispered to Bill.

“Not much,” he whispered back. “They’re still getting acquainted.”

I remember one of the men saying something like “It don’t make no sense. Why would someone who had it all just throw it away over a woman?”

I’d heard that one before. To a guy who punches a time clock it probably seems incomprehensible to risk a fortune because you’ve been jilted. But that didn’t take into account the fact that even a guy who had everything could flip out in the throes of sexual obsession. I made a note to confer with our domestic violence people about this one.

As I wrote, Vinson’s voice penetrated my concentration. He was asking our focus group what they felt about the death penalty.

I stiffened with alarm. We’d given him a list of topics, and that most certainly wasn’t on it. They were not supposed to talk about sentencing issues. I looked over to Frank, who was already on the case. He whispered something to one of Vinson’s assistants, who promptly entered the conference room and in turn whispered to the boss. Vinson excused himself and came in to see us, chastened.

Vinson apologized, saying he did not know it would be a problem.

“There’s been no decision on whether we’ll seek death or not,” Frank told him. “That subject is strictly off limits.”

By this time, all of us in the D.A.‘s office knew that we wouldn’t be seeking the death penalty. It just wasn’t an option. No jury—not even one composed of white, middle-aged Republican males—was going to sentence O. J. Simpson to death.

Now, I know there is a school of thought that in a capital case, the district attorney should ask for the death penalty as a tactical ploy. If you have asked for the death penalty, every juror empaneled must be “death certified”—in other words, willing in principle to vote for death. And so, the reasoning goes, if you can pack a jury with law-and-order types, they will be more willing to convict.

I never believed that. What you’re likely to get, in my view, is a panel of tough talkers who, when push comes to verdict, can’t bring themselves to convict. Why? Because it has only just dawned on them that their actions may result in a person’s death.

There was an even more compelling reason for not asking for the death penalty in this case. I didn’t feel—and I don’t believe that any of my colleagues from the brass on down felt—that it was warranted. Apart from the incidents of battery, Simpson did not have a prior criminal history. Over the course of his life he had not shown the kind of callous disregard for society’s rules that you look for in a hardened criminal. O. J. Simpson was not an incorrigible, nor was he a danger to society at large. Under those circumstances it would have been immoral to seek his death.

Chastened, Vinson now steered the conversation onto another course.

“What do you think of the lawyers on the case?’ ” he asked them.

Of Robert Shapiro—
Oily, insincere
, said the nonblack jurors;
Smooth, smart
, said the black ones.

Bill Hodgman? A couple of jurors thought he was “smart” or “nice.” But the majority didn’t seem to recognize the name.

What do you think of Marcia Clark?

I found myself pulling my knees up to my chest to shield myself from the blows.

“Bitch!” two black women answered almost in unison.

I’ll make no bones about it. That stung.

Let me pause for a moment. I don’t want to make myself out to be some hothouse petunia who withers in the face of criticism. God knows I’d been called “bitch” before. But it was usually during the rough-and-tumble of trial work. And the taunts came from men, usually behind my back. They’re livin’ in a dream world if they think that stuff doesn’t reach my ears. Being called a bitch by some old-time gender bigot doesn’t bother me. In context, it’s a compliment. It means I’ve stood up to him, I haven’t let him have his way, and now he’s throwing a little tantrum.

But from women?

We all knew—virtually from day one—that a racial divide existed in this case, but I figured I could talk to women. In cases past, I’d always been able to reach them somehow. White, Hispanic, Asian, black. It didn’t matter. Even when they had failed to convict, I didn’t feel that they had it in for me personally. But
these
gals were ready to eat their own.

Interestingly, none of the men used such slurs in describing me. Most of them, including one black man, found me strong, smart, and tough. That didn’t count, somehow. It was the “bitch” remark that sailed right through the walls of the conference room and reverberated over the wires. So much for confidentiality. The story was out before we even made it back to L.A. The headlines all read that a Phoenix “jury” had voted to “acquit.” Of course, it was complete nonsense, since no vote was ever taken. But one thing that was true—the “bitch” business—was reported with rabid glee.

On the flight home, I gave serious thought to withdrawing from the case. I am not a quitter by nature, but, I thought, if my style, my gender, or my race could actually subvert the process of justice, I should offer Gil the chance to dump me gracefully. So I asked for a meeting with Gil and Don Vinson.

Now, I should say here that in the months since the verdict, Don Vinson has been quoted more than once as saying that his research showed that black women would be too turned off by me to render a fair and impartial verdict. He’s claimed to have counseled our office to downplay the domestic violence issue on the grounds that black women didn’t consider it any big deal—and that I resisted him, clinging to the delusion that I could make them care.

Reality check. By the time I returned from Phoenix, I knew perfectly well what I was up against. And if reaching jurors meant emphasizing physical evidence over DV, I was perfectly willing to do it. The domestic violence aspect of the case had gone largely undeveloped. It wasn’t that we’d neglected investigating the essential leads. Early on, we’d been in touch with the City Attorney’s office, which had handled the 1989 battery incident. We’d collected files of documents generated by that case as well as those from the 911 call from 1983. Throughout the fall I would conduct extensive interviews with prosecutors and cops who had spoken to Nicole on both occasions. But I hadn’t been able to get beyond the basic facts or to talk to domestic violence experts who might help us to interpret those facts.

I hadn’t a spare moment to deal with it. My concentration and energy had been centered upon blood and other physical evidence. I was also experiencing some emotional resistance within myself—which I was hard-pressed to explain, though the reasons for it would become plainer to me as time wore on. The idea that I was on some wild-eyed feminist jag is one of Vinson’s self-serving fantasies.

Vinson’s misrepresentations of me, when I later read them in print, seemed all the more fantastic in light of the little speech he actually delivered to me in the very presence of Gil Garcetti.

“Marcia,” he assured me unctuously, “those responses are nothing to worry about. When you’re in the courtroom, they’ll get to know and like you. I know they will. No question about it.”

I looked to Gil. He paused for a moment, then said, “I agree with Don.”

Gil Garcetti could have bailed on me, and he didn’t. I will always be grateful to him for acting so honorably. I think he wanted to send a message that neither race nor gender should disqualify a good prosecutor. Gil also realized, as a purely practical matter, that anyone he chose was likely to meet resistance from jurors like those who’d branded me a bitch. A white man would be written off as a representative of the power establishment. A black man would be reviled as an Uncle Tom. A black woman? Black female jurors would fucking lynch her. Bottom line, if we drew a panel of jurors who were determined to acquit O. J. Simpson, they were going to kill the messenger.

For several weeks, the mock-jury results were a hot topic of gossip. The “bitch” comment took on a life of its own. I could hear tongues wagging: Clark’s a bitch. Clark’s a hothead. Is it any wonder she doesn’t get along with the judge?

By now the Barry and Lisa Show had given way to the Lance and Marcia Show. Lance and I probably didn’t do nearly as much wrangling as it seemed from the headlines. But whenever there was a flareup, the five scrappiest seconds would make the ten o’clock news. In fact, Ito and I spent a lot of calm, normal moments together doing business-as-usual courtroom stuff. Sometimes we got along well; other times, not. We didn’t have great chemistry, but if we’d been left alone we probably could have arrived at a wobbly truce.

But that was never going to happen. Lance was just too sensitive to his own press notices. He saw that the media had set up the two of us as sparring partners and he wanted to make damned sure the public knew, the reporters knew, and
I
knew who was running the courtroom. Whenever I raised my voice to make a point, he scowled or dressed me down. While he always spoke respectfully to the defense, referring to them as “Mr. Cochran” and “Mr. Shapiro,” I was usually “Marcia.” I felt that I had to draw the line early and break him of the habit of condescending to me before this case came to trial. If a jury picked up his cues, they’d tune me out before I could finish my opening statement.

Gil had been watching all this from the sidelines. A week or two after the “bitch” episode, he called me into his office for a heart-to-heart.

“Why don’t you try laying back?” he suggested. “Don’t be so tough.”

I was flabbergasted. What the hell did he want me to do? Go in there with a pinafore and pigtails and threaten to hold my breath if Lance didn’t treat me better? I had a job to do, and if I was to represent the People properly, I had to show a little strength. Either that or be an empty chair.

I was tempted to say all this, but I held my peace.

Gil smiled. “Just try lightening up a little.”

I left Gil’s office pretty hot under the collar. The thing I found galling about the “lighten up” business was my suspicion that these suggestions had probably come straight from Don Vinson. By this point, Vinson had zero credibility in my book. If he’d offered his etiquette tips directly to me, I would have told him to go fuck himself. But they didn’t come from him; they came from my boss. I had a lot of respect for Gil Garcetti. He seemed to have faith in Vinson, and once I’d had a chance to calm down, I realized it was probably not a good idea to blow him off.