The Run of His Life: The People v. O. J. Simpson (33 page)

Prodded by Garcetti, who remained a fan of Vinson’s, Clark agreed to a more detailed follow-up to the July 23 focus group. Understanding Clark’s fear of leaks in the frenzied atmosphere of Los Angeles, Vinson proposed that they move their next research session out of the city, to a place that was demographically comparable to the site of the trial. Phoenix seemed about right, he said. Vinson would even arrange for a private plane to whisk Hodgman and Clark out of the city secretly so they wouldn’t have to worry about reporters learning of their trip. The prosecutors passed on the plane, but agreed to go to Phoenix and hear more about how prospective jurors might react to their case.

Clark and Hodgman met at the Burbank airport late on the afternoon of August 18 for the short flight to Phoenix. (Vinson and his colleagues flew from a different airport.) Rushing to catch the flight, Clark came to an abrupt stop in front of the metal detector.

“Oh my God,” she said. “I’ve got my gun.”

In light of her high public profile, the detectives on the Simpson case had prevailed upon Clark to start carrying a gun. At the airport, she had forgotten all about it until the last minute. Hodgman ran ahead to the gate to try to hold their flight. Airport security personnel were not amused at her oversight, and their representative told Clark she would have to fill out a federal form if she wanted to be allowed to travel by air. People at the airport scurried to find the right paperwork, but no one could find it in time for Clark and Hodgman to catch their flight. They stewed in an airport lounge, and when the official with the form arrived, he was followed by a reporter and photographer from the
National Enquirer.
By the time Clark and Hodgman were able to get on another flight and make it to their hotel in the suburb of Peoria, they were frazzled and exhausted, and now beset by a full squadron of journalists demanding to know what business they had in Phoenix.

What should we do? they asked themselves.

“Bag it,” Clark said. “The press’ll be all over this thing tomorrow. Let’s just go home.”

John Martel, who got along better with Clark than Vinson did, tried to talk to her. Perhaps they could salvage at least part of the project, he suggested. Instead of having the lawyers make presentations to the mock jurors, Vinson proposed that they should simply ask the participants questions about what they thought about the case so far. That way, there would be nothing to leak. It would just be a survey of the impact of the media on the case. Reluctantly, Clark agreed to listen.

The following day’s session involved seventeen mock jurors again divided more or less evenly along gender and racial lines. As in the first focus group, the racial division of opinions was nearly absolute, with black women backing the defendant most intensely. Detailed questions revealed even more shocking results. Vinson asked the panel members to rate everyone in the case on a scale of 1 to 10 based on how much sympathy they felt for them. From the
black women, O.J. Simpson received all 9’s and 10’s. Nicole Brown Simpson—a murder victim!—scored a 7, a 5, and a 3. Then the questions turned to the mock jurors’ impressions of the lawyers. The black participants almost uniformly described Robert Shapiro as “smart” and “clever,” while the reactions to Clark were scathing:

“Shifty.”

“Strident.”

“Bitch.”

“Bitch.”

“Bitch.”

Marcia Clark had to sit in an adjacent conference room and listen, on a closed-circuit video feed, as black women—
her
jurors, she had thought—described her in these unflattering terms.

As if the situation could get any worse, several of these mock jurors spent much of the following week giving interviews—on the
Today
show, CNN, and a variety of other media outlets—and discoursing at length on how unpersuasive the prosecution’s “evidence” had been. Martel was beside himself, desperate to respond in public that there hadn’t even been any presentation of evidence by the prosecution at the focus group. But Garcetti’s spokeswoman, Suzanne Childs, preferred to say nothing. Thus, the impression persisted that there had been some sort of prosecution failure in Phoenix.

With jury selection just a few weeks away, the prosecutors had to take stock. Between the two focus groups and a general telephone survey conducted in Los Angeles by DecisionQuest, there certainly had been no ambiguity in the results: African-Americans remained devoted to Simpson’s innocence, with black women his strongest supporters. According to the telephone poll, black men were three times more likely than black women to believe that Simpson was guilty. Moreover, black women felt overwhelmingly that even if Simpson had engaged in a pattern of domestic violence against his ex-wife, that didn’t make him appreciably more likely to have killed her. According to the telephone poll, a full 40 percent of black women felt that the use of physical force was appropriate in a marriage. And black women especially could not abide Marcia Clark.

Vinson asked why. Evaluating the data in social science terms, he came up with what he called a “psychosexual” reason for the results.
He said that African-Americans viewed O.J. Simpson as a symbol of black male virility in a predominantly white world. He was handsome, masculine, likable, and charming. As a consequence, according to Vinson, black women in particular saw Clark as a “castrating bitch” who was attempting to demean this symbol of black masculinity. Everything about Clark was harsh—her demeanor, her clothes, even her rapid-fire speech, which Vinson felt intimidated those of lesser educational backgrounds. Vinson ran his theories by Clark, and the consultant even volunteered some personal advice for the prosecutor. Vinson said that Clark might want to soften up her appearance for the trial—with a new hairstyle, fewer business suits, more dresses.

On the eve of jury selection, Marcia Clark sat down and thought it over—the focus groups, the telephone survey, the jargon-filled demographic analyses, and even the fashion hints. Then she made up her mind: Don Vinson could go to hell. She was going with her gut.

Lance Ito forgot to turn on his microphone when he took the bench on Monday, September 26, 1994—a small sign that the usually meticulous judge had the jitters on the first day of jury selection. It had been a considerable accomplishment on his part to start jury selection on time, but he—like everyone else in the courtroom—knew that the decisions made now would dwarf all others in importance.

Ito had arranged for a huge pool of potential jurors—more than nine hundred—to be brought forward for the Simpson case. The prosecution had asked that the jury in this case be sequestered, a request that had become almost customary in recent years for the highest-profile cases. Sequestration would mean that the jurors and alternates would be almost entirely cut off from the outside world for the duration of the trial. They would live in near isolation, with all but their conjugal contacts monitored for exchanges of information about the case. Not surprisingly, many potential jurors refuse to sit in sequestered juries, especially for trials anticipated to be long. Because Los Angeles County pays jurors a stipend of just five dollars a day, only retirees or mid- or low-level employees of large institutions—the kind that continue to pay
employees during jury service—were likely to agree to serve. Conventional wisdom among lawyers holds that a sequestered jury is a convicting jury, but this case, as ever, presented unusual complications. Sequestered juries also tend to scare off most people, leaving only those with a strong incentives—or big agendas—to serve. In this case, the most passionate partisans tended to favor the defense.

The prosecutors hoped the judge might signal to the potential jurors that for all the hoopla surrounding the Simpson trial, it was, in fact, just another criminal case. But Ito, carried away with the excitement of the moment, did just the opposite when the large group assembled before him. “I have never seen a case quite as unusual as this case,” the judge said. “This is perhaps the most important decision you will make in your own personal life.” Ito thought the candidates deserved fair warning of what might be in store for them. As the first group sat before him in the Criminal Courts Building’s large jury-assembly room, Ito told them that the trial was expected to go “through the end of February of 1995.” (He was off by more than seven months.)

The nine hundred potential jurors had filled out brief questionnaires for this first portion of jury selection, called the “hardship” phase. They provided basic demographic information about themselves and supplied reasons why service in the case would be a “hardship” to them. This initial group provided a fair approximation of the overall jury pool in the downtown Los Angeles area. They were roughly equal in men and women, 28.1 percent African-American, 37.9 percent Caucasian, with the remainder divided among Latinos, Asians, and others. (Overall, the downtown jury pool is about 31 percent African-American and 30 percent Caucasian.) The potential jurors were a fairly well educated group; nearly three quarters of them had some college or were college graduates.

The purpose of the hardship phase was to determine which jurors had irreconcilable personal conflicts with jury service and which ones would go on to the next round of inquiries. As it turned out, Ito was a soft touch: Anyone who wanted out got out. Of the 219 potential jurors who arrived on the first day, Ito excused 90 solely on the basis of their questionnaires. Most said that their employers
would not pay them during long jury service or that their personal situations made such service impossible. Moving to the next phase, the judge and the lawyers retreated into a small anteroom to question those jurors whose hardship answers were ambiguous. Deirdre Robertson, Ito’s clerk, drew the first juror number to be questioned.

“Number … thirty-two,” she said.

Ito smiled, for this had been Simpson’s number throughout his football career. “I don’t know if this is an omen,” the judge quipped, and the defendant eagerly nodded his head.

The hardship phase of jury selection took only four days, less than anyone had expected. To Ito’s surprise, many jurors seemed downright anxious to be jurors on the case. By Thursday, September 29, the judge had assembled the pool of 304 willing citizens from which the 12 jurors and 12 alternates would be selected.

The lawyers on both sides spent the following ten days poring over the prospective jurors’ answers to a much more elaborate questionnaire that Judge Ito had given them. He had asked both sides to submit questions to him, and in an ominous harbinger of how he would conduct the trial, the judge basically threw up his hands and let both sides ask pretty much anything they wanted. This laissez-faire approach yielded a monstrosity—an eighty-page list of 294 questions, to be answered in writing, many of them calling for essay-type responses. The questionnaire began with reasonable-sounding inquiries about prospective jurors’ employment and prior jury service, but it quickly descended into an absurd and insulting fishing expedition: “Have you ever asked a celebrity for an autograph?” “Have you ever known anyone who had problems leaving an abusive relationship?” “What do you think is the main cause of domestic violence?” (Three lines were provided for an answer.) “Have you ever dated a person of a different race?” “How important would you say religion is in your life?” “Have you or anyone close to you undergone an amniocentesis?” “Have you ever written a letter to the editor of a newspaper or magazine?” “Are there any charities or organizations to which you make donations?” “If not currently a fan, have you in the past
ever been a fan of the USC Trojans football team?” “Does playing sports build an individual’s character?”

As the prosecutors digested the vast collection of answers, they learned one important thing: The hardship process had acted like a vacuum cleaner for educated, white, and male jurors—all groups that had showed a predisposition in favor of the prosecution. A little less than one third of the original pool of nine hundred consisted of African-Americans. In the group that remained in the process at the questionnaire stage, their number jumped to about one half. And three quarters of the black prospective jurors were female—the most pro-Simpson group of all.