The Run of His Life: The People v. O. J. Simpson (37 page)

Not wishing to intrude, and preoccupied with his own cases, Bailey initially spent little time in Los Angeles and heard only the complaints of McKenna and McNally. Bailey’s one-on-one relationship with Shapiro remained close, and when he was in L.A., Bailey stayed at the Beverly Hills home of Shapiro’s best friend, Michael Klein. Bailey tried to mollify his investigators as best he could and brought in another protégé, Howard Harris, a database specialist whose mission was to computerize the voluminous files in the case. At one point, McKenna saw Shapiro only once over a period of several weeks, and that was when he went to Shapiro’s house to install his son’s computer. “Don’t worry,” Bailey told his investigators when they complained about Shapiro. “He just has a different style than we do. He’s really very bright.” For his part, Bailey mostly remained in Florida, although he did arrange for the first volume of his memoirs,
The Defense Never Rests
, to be reissued in paperback. A cheerful new blurb was added to the cover: “O.J. Simpson’s Acclaimed Defense Attorney Re-Creates His Most Famous Wife-Murder Cases.”

Through the summer, the tensions grew between the Shapiro camp (Pavelic and various part-timers) and the Bailey group (McKenna, McNally, and Harris). Their differences were partly philosophical. Bailey’s team favored a minute dissection of the government’s case. For example, McKenna and McNally—and sometimes even Bailey—repeatedly walked up and down Bundy Drive knocking on doors in an effort to locate witnesses who could contradict the prosecution’s theory of when the dog started barking (and thus when the crime occurred). In this way, Bailey hoped, they could undermine the government’s case piece by piece.

In contrast, Pavelic favored an all-or-nothing approach and accordingly spent much of his time chasing theories about the identity of “the real killer.” Almost daily, Pavelic would return to Shapiro’s office with a breathless new theory. On June 22, for example, Pavelic sent Shapiro a memo that stated, “Rumor has it
that Ron’s lover discovered his infidelity with Nicole Simpson … and killed them both.” Pavelic had many other theories, however.

“A house burglar saw the guys who did it!” he announced one day. In his memorandum outlining this theory, Pavelic reported that he had spoken to the burglar, and he “distinctly recalled hearing one of the suspects saying, ‘
slit the Nigger fucking/lovin bitch.
’ ” (Unfortunately for the defense, this burglar also claimed that he had seen the murder of Polly Klaas and a hit by John Gotti.)

“Goldman had semen in his ass, and it was a gay hit!” (The autopsy showed no such evidence, and Goldman wasn’t gay.)

“A marcher at a Gay Pride parade saw two men covered with blood at a phone booth yelling, ‘O.J. is going to pay for what he did to us!’ ” (Too ridiculous even to consider. “You’re a fucking Martian,” McNally told Pavelic.)

It didn’t matter to Pavelic that his theories usually conflicted with one another. His enthusiasm was boundless—as was his contempt for Bailey’s investigators. Howard Harris spent a great deal of time setting up a computer program that was supposed to give the defense team access to virtually every address and phone number in the Los Angeles area. On the day it was completed, Pavelic typed in his own name, and he was delighted when nothing came up—even though he had lived in the same house for decades.

One day late in the summer, Shapiro invited all of the investigators to a screening of
Forrest Gump
held at the Beverly Hills mansion of his friend Robert Evans. Before the lights were lowered, Shapiro rose and addressed the group. “I know I haven’t been too friendly. I’ve been accused of being too aloof,” he said. “That’s going to change.”

McNally, who loved to twit Shapiro, spoke up in response: “That’s not the problem, Bob. The problem is no one does any work out here.” Shapiro ordered the movie to begin.

By the time jury selection was completed, McNally decided he had had enough. The last straw for him came when Shapiro told the investigators that Skip Taft, O.J.’s business manager, had told him there would have to be pay cuts all around. McNally was supposed to have received $22,500 for his work over the summer, and the bill hadn’t yet been paid. Instead of taking a pay cut, John McNally returned to New York for good.

The tensions among the defense investigators only replicated those that had been simmering, albeit more decorously, among the defense lawyers. When Cochran had been hired, there was no question that he ranked behind Shapiro in the unspoken but real hierarchy of the defense team. Yet the issue of Cochran’s role in the upcoming trial, which had been left conspicuously unsettled all through the fall, weighed heavily on Shapiro. At one level, he never had the illusion that he could try the case by himself, and he welcomed Cochran to the team. But Shapiro all along saw himself as a sort of master of ceremonies for the defense, a notion that became increasingly untenable over time. Throughout the fall, Cochran spent increasing amounts of time at the jail with O.J., and Simpson became ever more enamored of Cochran and alienated from Shapiro—who had always loathed having to visit prisoners. Race, too, assumed ever more importance in the defense strategy, and Shapiro—notwithstanding his having launched the issue in the first place—hated confronting its incendiary aftermath.

Simpson had hired Cochran as a trial lawyer, and the trial was fast approaching. How could Cochran remain number two? He couldn’t—and the implications made Shapiro squirm. In a bid to forestall the inevitable, Shapiro made a final effort to keep control of the case in the only way he knew how.

One afternoon late in the jury selection process, Bailey and Kardashian were talking with Simpson in the tiny lockup beside Judge Ito’s courtroom. Shapiro joined them and said he had just spoken to the prosecutors. He said that he now understood their theory of the case. “The prosecutors think that you were mad at Nicole because she didn’t invite you to dinner at Mezzaluna with the kids,” Shapiro told Simpson. “They think you sat around your house getting pissed off, then went over to Nicole’s, probably with the idea of slashing the tires on her car. There was some sort of confrontation at the house, and you killed her. Then Goldman showed up.”

The lawyers and their client listened to Shapiro’s summary without comment.

“So,” Shapiro went on, “that leaves room for manslaughter. And Bob [Kardashian] would have to account for the knife, but that’s probably no more than five years for accessory after the fact.”

There was stunned silence—incredulity that Shapiro would propose a plea bargain at this late date. But cutting deals was Shapiro’s specialty, and making one now was the only way for him to remain in charge of the case. Simpson did not reject the proposal so much as ignore it. The conversation simply moved on to other topics.

With this final gambit, Shapiro ignored his own lessons about the importance of deference to celebrity clients. There was no logical reason to suggest a plea at that moment. The Fuhrman issue had poisoned the racial atmosphere surrounding the trial in a way that could only help the defense. Thanks to Cochran, jury selection seemed likely to produce a politicized, pro-defense panel. By proposing that Simpson agree to plead guilty to anything—at a time when O.J.’s outright acquittal was more likely than ever—Shapiro alienated his client beyond measure (likewise Kardashian, Simpson’s most loyal courtier). Shapiro’s prompt departure from leadership of the case became, at that moment, inevitable.

The impending end of his reign as lead defense counsel led Shapiro into increasingly erratic behavior. In early December, he sent several reporters who were covering the case (including me) a gift. It was a large bottle of men’s cologne; the brand, D.N.A. News of the gift promptly leaked, of course, and virtually all the reports stressed the inappropriateness of the gesture. (Like many of the reporters, I sent mine back with a polite note.) Even Shapiro’s friend Michael Klein was appalled. Klein told him, “Bob, don’t you realize that two people are dead in this case?”

Klein also figured in another bizarre Shapiro episode. Later in December, Shapiro decided to take his wife and two sons to Hawaii for a brief vacation. Klein set up the trip through United Airlines, where he had high-level connections. The day before Shapiro’s scheduled departure, the lawyer called Klein in a panic. He demanded that Klein change his reservations to a pseudonym: Tony DiMilo. Klein didn’t understand the need for secrecy. All the while wondering about his friend’s stability, he agreed to put through the change. It was a pointless formality, of course, for Shapiro was instantly recognized both on the plane and at his hotel. While in Hawaii, Shapiro also put in a strange phone call to
Bailey. Still hoping to salvage control of the case, Shapiro beseeched Bailey, “You gotta get Johnnie to back off.”

Bailey was noncommittal to Shapiro, but he would tell Cochran no such thing. A savvy political creature himself, Bailey saw that Shapiro had at this point no chance of remaining in charge. Indeed, Bailey had spent much of the fall cultivating Cochran so that he, Bailey, would be able to carve out a significant role at the trial. Almost in passing during this long conversation from Hawaii, Shapiro mentioned Bailey’s financial status in the case. This is always a prickly subject among lawyers, and Bailey’s arrangement had been conspicuously vague for several months. But Bailey had had other business and his time commitment to Simpson had been modest, so he hadn’t pressed for a resolution of the issue. Still, Bailey was not prepared for what Shapiro told him from Hawaii: “You know you’re a volunteer, right?”

Bailey was, though he didn’t know it. Shapiro’s retainer agreement with Simpson was contained in a letter dated August 24, 1994. (Shapiro never showed this agreement to Bailey.) “Dear O.J.,” the letter read. “You will compensate me for my personal legal services through the end of the … trial in the sum of $1,200,000, payable as soon as reasonably possible, but no later than in monthly installments of not less than $100,000.” The letter went on to state, “You will not be responsible for any additional payment of fees for legal services performed by … F. Lee Bailey, which shall be my responsibility, if any.” (Cochran’s separate agreement called for a fee to him of $500,000.) Bailey knew none of this at the time. Nor could he know, of course, that once Shapiro’s role in the trial was reduced, he would stop receiving the monthly checks, and that he would ultimately receive only about $700,000 from Simpson, plus expenses.

At the time of the phone call, Bailey was enraged by Shapiro’s presumptuous reference to his status, not to mention the status itself. Bailey was in the Simpson case more for ego gratification than for money, but he found Shapiro’s treatment of him demeaning. (Bailey later negotiated a modest retainer agreement of his own with Skip Taft, O.J.’s business manager.) In this phone call from Hawaii, Shapiro succeeded only in alienating Bailey, an erstwhile ally. It would soon become clear that Shapiro had no allies left.

As part of his effort to ingratiate himself with Cochran, on December 21 Bailey sent Cochran a thirteen-page single-spaced memorandum as “a preliminary effort—i.e. a ‘first cut’—to bring the preferred trial strategies and tactics in the forthcoming trial into focus.” The memo, which turned out to be remarkably prescient, laid out a number of defenses to be used at the trial. They included “Demeanor Evidence”—proof that Simpson was the usual “relaxed, happy, affable O.J.” before his trip to Chicago; once he learns of the murder, “his affect reverses.” There was also the “Time Line” defense, “to demonstrate that at no time is there a ‘window’ of fifteen or more minutes when O.J. could have snuck off and committed the crime.” About the time line, Bailey wrote, “Properly orchestrated, this can be a powerful garden in which reasonable doubt can grow and flourish.” There was also “Lack of Motive”—no reason why Simpson “would butcher the mother of the two small children he adored,” especially “in light of his manifest equanimity when confronted … with Nicole’s sexual expeditions.”

In sum, Bailey wrote, the evidence in the case “warrant[s] a demeanor of controlled indignance.… This ought not to be a polite request to the jury, but a formal demand supported by a foundation of appropriate righteousness.… The manner in which the investigation in this case was botched from beginning to end—including protection and preservation of the crime scene, intervention of the medical team, letting the Bronco sit about for all to enter, delaying the blood testing unconscionably, and ‘salting’ the blood evidence to incriminate O.J.—will be described by historians as a blight on the face of justice.” In a footnote to this peroration, Bailey showed just how well he understood the case. “None of the above will have much value,” he wrote, “unless and until it is translated into the ‘Downtown’ dialect by our able colleague Cochran; given the makeup of the jury, he would probably be very effective at delivering his translation himself.”