The Run of His Life: The People v. O. J. Simpson (20 page)

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?”