The Run of His Life: The People v. O. J. Simpson (22 page)

In the Simpson case, the LAPD addressed its cash-for-trash problem in a little-noticed coda to the first public announcement of the murders. After giving the basic facts about the case, such as the names of the victims and the place where the bodies were found, Commander Gascon, the police spokesman, issued a plea to the news media. “Over the next few days, detectives will continue to interview possible witnesses and gather and analyze evidence,” Gascon said on June 13. “Detectives are requesting that the media not attempt to contact potential witnesses in this case, as those contacts may delay and negatively impact the course of this investigation. I need to stress that. It’s critically important.”

If the tabloids heard Gascon’s plea, it didn’t change their behavior. They offered cash to virtually every major participant (and many fringe figures) in the Simpson case. One night shortly after the murders, Mike Walker, the gossip columnist for the
National Enquirer
, announced on
Larry King Live
that his paper was offering Al Cowlings $ 1 million for an interview—and Walker held up a cardboard check in that amount to clarify his point. For the interview that she gave
Hard Copy
on June 20, Shively got a relatively small amount—$5,000. Displaying her subpoena for the cameras at Paramount, Shively adapted nicely to the tabloid idiom in her
interview, declaring that Simpson looked “like a madman gone mad, insane.” The producers at
Hard Copy
even gave her a little extra present. They said a friend of theirs at the supermarket tabloid
Star
would give her another $2,600 if she would allow him to use the text of the
Hard Copy
interview and pretend that it had actually been with him. Shively said sure. Then the following morning, June 21, Shively presented herself downtown, and Marcia Clark walked her through her story for the grand jury.

That night,
Hard Copy
ran the interview with Shively. Clark was apoplectic when she learned of it. In a brief conversation with Shively just before she had testified in the grand jury, Clark and Conn had asked her if she had spoken to anyone about the subject matter of her testimony. Just her mother, Shively had replied. Now it was clear that she had spoken to
Hard Copy
as well. Clark demanded that Shively return to the courthouse to explain herself.

Shively was terrified, and she brought her mother with her to the Criminal Courts Building on June 22. They waited nearly all day for an audience with Clark. When it came, Clark lashed out at her: “You lied to us! How could you?”

Shively tried to explain that she thought Clark and Conn had asked her who was the
first
person she told about the incident. That had been her mother. Shively said she didn’t realize they wanted to know all of the people she had told.

Clark scoffed. “We’ve got plenty of circumstantial evidence,” she said. “We don’t need you. We’re going to make an example out of you.”

Clark ordered her to return the next day, June 23, to explain herself before the grand jury. That night, Shively looked in the Yellow Pages for a lawyer on call twenty-four hours a day so that she would have someone to protect her from Clark’s wrath in the morning.

Accompanied by her lawyer, Shively returned to Clark’s office for another tongue-lashing. They then trooped in silence to the grand-jury room. There, Clark asked Shively why she had misled the prosecutors in the interview before her grand-jury appearance.

Shively explained again that she thought they had only wanted to know the first person she had told. “I was nervous and hadn’t slept all week, and wasn’t really thinking,” Shively said. “I wasn’t
trying to hide anything, because I knew it was being aired the next day.”

Shively was ushered out after only a few minutes, and then Marcia Clark asked for a moment to address the grand jury. “Ladies and gentlemen of this jury,” she said. “Because it is our duty as prosecutors to present only that evidence in which we are 110 percent confident as to its truthfulness and reliability, I must now ask you to completely disregard the statements given and the testimony given by Jill Shively in this case.”

Jill Shively presented a kind of problem that a midlevel prosecutor like Clark would never have encountered before. (To be sure,
Hard Copy
had never come calling on the witnesses in any of Clark’s earlier cases.) In part, Clark’s denunciation of Shively to the grand jury reflected a high degree of prosecutorial ethics, because prosecutors should never present evidence they find less than fully believable. But there was a kind of self-defeating sanctimony in Clark’s posture as well. Prosecutors deal all the time with witnesses who take a while to tell the full truth. Some lie far more extensively than Shively did before they get around to a credible story. And Shively’s “lie” seems more pathetic than evil; as Shively herself pointed out, she could not have expected that the prosecutors were going to miss the fact that she had spoken to a national television program. But Clark thought she could summarily dispose of Shively. A simple and unadorned request to the grand jury to disregard Shively’s testimony would have more than satisfied Clark’s ethical obligations. Instead, in a fit of pique, Clark denounced Shively in terms that made her permanently useless to the government.

But Marcia Clark felt she could afford it. After all, the prosecution had plenty of witnesses.

If Robert Shapiro had one great strength as a lawyer, it was that he usually knew what he didn’t know. In the first few days after the murders, Shapiro bought himself an enormous amount of help—high-priced experts in their respective fields. He didn’t know much about autopsies and crime scenes, so he called Michael Baden and Henry Lee. He knew nothing about DNA, so he recruited two
lawyers from New York, Barry Scheck and Peter Neufeld. Shapiro had not gone to trial on many complex crimes—and he had never tried a murder—so he summoned his old friend F. Lee Bailey. On the day Shapiro was hired, he called Bailey and said, “I need you to help me hold on to this case.” Shapiro knew that he needed Alan Dershowitz as well.

Of course, Shapiro didn’t get to Dershowitz first. Whenever any legal or criminal proceeding makes news, talk-show bookers instantly summon the Harvard Law School professor for analysis, and Dershowitz gladly delivers the goods in well-rounded sound bites. Alan Dershowitz has an enviable life—a prestigious professorship, lucrative deals for books and speeches, a full plate of wealthy clients eager to pay him for legal work—and yet he seemingly will appear on any program and talk about anything. His lust for publicity has a manic quality, as if the bookish yeshiva boy from Brooklyn still cannot believe that others care what he thinks. So when the calls came from the media in the immediate aftermath of the murders in Brentwood, Dershowitz was, as usual, available.

Besides, the timing was propitious. Dershowitz was just completing a book called
The Abuse Excuse—and Other Cop-Outs
,
Sob Stories
,
and Evasions of Responsibility
. In it, he wrote that a whole series of excuses—such as the “battered-woman syndrome,” the “abused-child syndrome,” and the like—were “quickly becoming a license to kill.” Some of these excuses, Dershowitz wrote with disdain, reflected “politically correct” sentiments that sought to apply different criteria of culpability to people from disadvantaged groups. “In effect,” he wrote, “these abuse excuse defenses, by emphasizing historical discrimination suffered by particular groups, seek to introduce some degree of affirmative action into our criminal-justice system.” The Simpson case seemed to fit right in. On Monday, June 20, 1994—the day the haggard Simpson mumbled his not-guilty plea in court—Dershowitz expounded on this thesis when he appeared in his legal-expert persona on public television’s
Charlie Rose
. On the broadcast, Dershowitz speculated that the Simpson case “may end up not with a bang but a whimper. I mean, this may end up in something like a hung jury. It may end up in a plea bargain.” Indeed, Dershowitz went on, the Simpson case might wind up having sinister implications. “It may end up with a terrible message.
It may end up with a Menendez- or Bobbitt-type verdict, which will send a message out, ‘Gee, you can get away with this kind of stuff.’ ”

Dershowitz’s comments irritated Shapiro when they got back to him. He told a friend, “How can we shut that guy up?” After a pause, he said, half jokingly, “I guess we’ll have to hire him.” And the day after Dershowitz appeared on
Charlie Rose
, Robert Shapiro called Alan Dershowitz and invited him to join the defense team. Dershowitz dutifully informed Shapiro that he had made some less than supportive comments in the media. Shapiro didn’t care. Alan, he said, we need you.

No law, or even any ethical rule, prevented Dershowitz from accepting the assignment. (Shamelessness is a moral, rather than a legal, concept.) As Dershowitz himself cheerfully noted in his memoir
The Best Defense
, “Almost all of my own clients have been guilty.” In the Simpson case, Dershowitz was an observer one day, an advocate the next—a shift that reflected, as Anthony Kronman, the dean of Yale Law School, once aptly put it, “the indifference to truth that all advocacy entails.” Lawyers live by such distinctions, even as they fuel public cynicism about their profession. (Kronman himself later changed his mind about his own mordant observation.)

For Dershowitz, though, the call from Shapiro did not come completely out of the blue. The two lawyers had worked together before. And although Dershowitz sometimes comes across as a preening clown on television, he is in fact a superb defense attorney, who specializes in identifying and exploiting the weaknesses in the government’s case. Dershowitz had played a behind-the-scenes role in the defense of Shapiro client Christian Brando, who eventually pleaded guilty to killing his sister’s boyfriend. Shapiro now told Dershowitz that he had also hired a lawyer who had worked with them on the Brando case: Gerald Uelman, who was, like Dershowitz, a law school professor but was in many ways his opposite. Soft-spoken, with pale skin and white hair that seemed at times to render him nearly invisible, Uelman served as dean of Santa Clara University law school, in San Jose. Although the two professors differed in style and temperament, they shared an aggressive philosophy about how to defend a criminal case. Above all, they believed
that the defense had to stay on the offensive—challenging, protesting, complaining, and endeavoring in every respect to create chaos in the prosecution camp.

Dershowitz and Uelman discovered their first opportunity to do this in the extraordinary onslaught of publicity the Simpson case was receiving. It is a truism among judges in criminal cases that pretrial publicity hurts the defendant, and much incriminating information about Simpson did come out immediately after the murders. However, as the Simpson case illustrated so dramatically, pretrial publicity can hurt the government’s case as well. Simpson’s lawyers knew they could portray their client as the helpless victim of a publicity-seeking prosecutor and an irresponsible news media. The question was how to turn that sympathetic picture of the client to their legal advantage.

Simpson’s lawyers hit on the idea of challenging the grand jury. They would allege that the pretrial publicity had so poisoned the minds of the grand jurors that they would have to be recused en masse and the case would have to be sent to the June 30 preliminary hearing after all. There was only one problem with this theory: Apparently, no grand jury in history had ever been disbanded for this reason. Still, Dershowitz and Uelman figured, it didn’t hurt to take a shot. Besides, on Wednesday, June 22, the government presented the defense with another unintentional gift. On that day, the Los Angeles City Attorney’s Office, acting on media requests, released the audiotape of Nicole Brown Simpson’s heartrending telephone call to 911 on October 25, 1993. “Can you get someone over here now? He’s back. Please,” the trembling voice of Nicole said on a tape that was played repeatedly on television and radio. “He’s O.J. Simpson. I think you know his record.… He’s going to beat the shit out of me.” While the tape did contribute to a poisoning of attitudes against Simpson, its release also added to the defense’s claim of excessive pretrial publicity.

So, with Uelman working out of San Jose and Dershowitz in Jerusalem on unrelated business, the lawyers put together the first of the 393 legal motions that would be filed in the Simpson case. They called it an “Emergency Motion for Voir Dire of Grand Jurors and Determination of Prejudice from Improper Pretrial Publicity.” The most the defense lawyers really hoped for was that a judge
would agree to voir dire—that is, question—each of the jurors and then determine the impact of the publicity on them. Almost as an afterthought, they threw in the completely unprecedented request that the grand jury be disbanded. Though it meant that Dershowitz had to run up a telephone bill of $800 at the King David Hotel, the defense was able to file its indignant brief on the morning of Friday, June 24. In it, the defense urged the court to take “certain essential steps to alleviate the prejudicial impact of the improper release and massive publicity given to inadmissible evidence in this case [and] prejudicial and improper expressions of personal opinions by prosecutors.” Listing the calumnies that had been heaped on their client by Garcetti and Clark, the defense lawyers wrote, “The District Attorney speculated that the ex–football star eventually might admit killing his ex-wife and her friend but would claim a defense similar to that of the Menendez brothers.” In another example, the defense noted with dismay a statement from Garcetti quoted in the
Los Angeles Times
of June 19: “It wouldn’t surprise me if at some point we go from, ‘I didn’t do it,’ to ‘I did it, but I’m not responsible.’ ” (Meanwhile, of course, Dershowitz had said practically word for word the same thing on national television on June 20!)