Without a Doubt (22 page)

It was D.A. Lisa Kahn’s job to explain this to Ito. Unfortunately, she and the defense’s own DNA point man, a scrappy little New York import named Barry Scheck, could scarcely conceal their contempt for each other. Day after day she and Scheck went at it, he accusing us of bad faith, she accusing him of filing a flood of motions to confuse and mislead the court. The press dubbed these running hostilities “The Lisa and Barry Show.”

I could see that both of them irritated the hell out of Ito. Under the best of circumstances, Lisa wasn’t inclined to suffer fools, and she’d copped a snippy attitude with the judge.

One afternoon I was upstairs trying to get some of my own work done when a law clerk came running into my office.

“Marcia, have you seen what’s happening in court?” she gasped. “You’d better get down there ASAP. Ito’s furious at Lisa!”

I grabbed a pad of paper and flew downstairs, but court had already adjourned for the day.

Later, back in my office, Lisa gave me the unpleasant details. Ito seemed to be leaning toward keeping out blood samples, so she’d snapped, “If the court wants to make such a ruling, the court is entitled to… although I don’t believe there is truly any authority to support it.”

This had infuriated Ito.

“Fuck him, if that’s the way he wants to be,” she said angrily.

“You’re gonna have to do some begging and pleading to shore up our position,” I told her.

She wouldn’t do it. She wasn’t going to kiss butt for a motion she felt we shouldn’t have to argue in the first place. I sympathized with her, but I knew this intransigence would get us nowhere.

Ito was set to rule four days hence on whether our delays had been deliberate. If he found they were, he could impose sanctions that would exclude as many as two dozen blood samples. Among them was the blood of Ron Goldman, which had been found in the Bronco. It was a devastating piece of evidence against the defendant. And its loss would be terrible for us.

I knew we had to do something to pull Ito back toward the center—and fast.

I sat Lisa down and we drafted a letter, calmly laying out our position. I promised that I would take the letter in myself and spare her the humiliation of bowing to Ito’s wishes.

Friday morning, October 14, I took a deep breath, put my head down, and marched into court. I handed the letter to Ito’s clerk, Deirdre Robertson. This was going to be ugly.

When Ito took the bench I asked permission to address the court. He granted it curtly.

This is not the time to stand on your dignity
, I told myself.
Fall on your damned sword
.

So, on behalf of the People, I apologized profusely for any slight His Honor might have suffered during Tuesday’s hearings, and I implored him to consider the letter we’d submitted. I begged him not to cripple the People’s case by keeping out evidence when the testing delays were really no one’s fault.

Ito was still petulant. Why, he asked, couldn’t Lisa have answered him civilly and satisfactorily when he’d asked her for explanations? He continued to take out on me all the animosity he felt toward her.

“I don’t know if I can telegraph this… more openly. You’re about to lose,” he warned me.

We all went home that weekend in very low spirits, thoroughly expecting that next week, Ito was going to cut our legs right out from under us.

But then Lance did another of his classic turnarounds. On the following Tuesday morning, when we reconvened on the matter, he announced that he’d found no deliberate attempt on our part to sandbag the defense or the court.

Defense motion denied.

I glanced over at the defense table. Johnnie looked stunned. Barry Scheck looked like somebody had killed his dog. I was nearly weak with relief.

It was only as we were basking in the afterglow of this victory that I let myself reflect on the dynamic that had turned the situation around. Lance Ito had really enjoyed watching me grovel.

I’m sure Gil thought twice before asking me to take a meeting with Don Vinson. He knew that I had very little patience with frivolous interruptions. Ever since this case had started I’d found that people in high places would find any excuse to “meet” with me or Bill. Often these meetings came in the guise of some kind of help or favor they wanted to offer, but what I suspected people really wanted was to pick up insider gossip on the case and pass it along at cocktail parties. Media biggies arranged for Suzanne Childs to bring them by my office in hopes of getting an interview. Under other circumstances I would have gotten a kick out of that. Some requests I could deflect with a polite refusal; others required that I break from my work and chat for a few moments for the sake of diplomacy. Each of these interruptions probably took less than ten minutes. But the minutes added up.

The meeting with Don Vinson was not so easily avoided. Vinson was the founder of Decision Quest, a firm that specialized in jury consulting. After the hung verdict in the Menendez case, Vinson had volunteered his services to our office for the retrial. Gil was touched by the gesture. Apparently, both he and David Conn were impressed by Vinson’s work, and when Vinson offered to consult gratis on the Simpson case, Gil thought we should go for it.

Now, I do not particularly like jury consultants. As far as I’m concerned they are creatures of the defense. They charge a lot, so the only people who can afford them are wealthy defendants in a criminal trial or fat-cat corporations defending against class-action suits. As a matter of principle, I don’t feel that the government should be in the position of market-testing its arguments.

Not long after the preliminary hearings, however, we’d heard that Simpson had retained a topflight jury consultant named Jo-Ellan Dimitrius. Jo-Ellan was a heavy hitter who’d been used successfully by the defendants in both the McMartin Preschool and Rodney King state and federal trials. The line on her was good; she was a decent person and a hard worker who handled everything for her clients, from drawing up a profile of the ideal juror, to writing the ideal juror’s questionnaire, to evaluating responses and rating prospective juror candidates. No doubt about it, the Dream Team had hired themselves a great big gun.

This had Gil very worried. There were a number of tricky currents in this case: race; public attitude toward the LAPD; the defendant’s celebrity. If the defense was out there gathering intelligence to help them navigate these waters, then, Gil’s thinking went, so should we. In this case I agreed. I wanted all the help I could get.

Vinson suggested that Bill and I meet him for lunch at the very conservative, very exclusive California Club in downtown L.A.

I balked.

“If they have ideas for us, let them come in here and hand them over,” I groused to Bill. “I’m in no mood to clink glasses.”

Bill, ever the voice of reason and conciliation, coaxed me out of my lair with the promise that if Vinson didn’t offer anything of substance, I’d be off the hook for future invitations.

In a private dining room within that very private club, we found Vinson, a heavy, florid man with huge jowls. Thin wisps of white hair had been combed into submission across his pate.

“Ms. Clark,” he greeted me, in a drawl that suggested an
haut bourgeois
pedigree. When he rose to shake my hand, I caught the flash of gold cuff links. Bill noticed them, too. They became our private joke. After that, any time we ran into something pretentious, we’d refer to it as “very cuff link.”

Vinson was full of grand plans. He urged us to let him try out our case in front of a mock jury. It would work this way: He’d recruit a demographically diverse group of people to serve as jurors. He’d make a videotape of me giving a final argument for the prosecution, and Bill giving one for the defense. The jurors would deliberate and vote to convict or acquit. We would be allowed to watch them through a one-way mirror.

Bill frowned. I knew that he, like me, favored doing things simply, without all the flash. But I just sipped my Chardonnay and tried to sort out my thoughts before speaking. It was absolutely imperative that the results be kept confidential. Bill and I would have to lay our evidence on the line. We certainly didn’t want that leaked to the press.

“Oh, don’t worry,” Vinson told us confidently. “We’ve never had a problem before.”

So, against my better judgment, and in deference to my boss, I gave my okay to this plan.

This would require some work. After all, pulling together a closing argument was not easy to do. At that point we did not have the DNA evidence back, so I would have to cobble something together from the prelims. It took time we didn’t have, but Bill and I completed our respective arguments, and taped our presentations one evening down in the conference room. Then we sent them off to Vinson.

Several days later, Vinson called me to say that he could not use my tape. It was important that the mock jurors not know which side, prosecution or defense, was sponsoring the testing. I had become “too famous,” he said. If he showed my tape, we’d give ourselves away. He now wanted to redo my argument, with one of his male associates presenting it.

On Saturday, July 23, 1994, Gil, Bill, and I met Vinson at an office building near the airport. The consultant ushered the three of us into a darkened room, where we got the first peek at our “jurors” through a one-way glass. There were ten. Four black, two Hispanic, two Asian, two white. They’d been warned to base their decision solely on the evidence, but they quickly tossed that admonishment to the wind and began kicking around the question of whether Mark Fuhrman could have planted the glove. The battle lines were drawn. Blacks were convinced he had; the others professed neutrality or disbelief. Then they moved on to the juicier, yet totally tangential issue of whether Kato and Nicole had been lovers.

“They were supposed to be talking about our videos, not gossip from the six o’clock news,” I complained to Vinson.

He stepped into the room to remind the group to confine its comments to the evidence.

“Well, yeah,” they argued. “But everyone knows about all this stuff anyway.”

Reluctantly, they agreed to try again. Within two minutes they were off and gossiping on another subject not mentioned on the tape—the Bronco chase. Black jurors believed Simpson had only wanted to visit Nicole’s grave. When one of the more neutral jurors suggested that it might—just might—have been the escape attempt of a guilty man, one of the female blacks shot back with a defense of Simpson, referring to him as “my man O.J.”

“
My man?
” I thought to myself.
The only way he’d be your man is if you were white, twenty-five, and built like a centerfold
.

The racial divide did not come as any great shock to us. As early as the second week of the investigation our grand jury adviser, Terry White, had come to us warning that a couple of black female jurors seemed protective of Simpson. They’d gone so far as to say that Nicole “got what she’d deserved.” What was disturbing to me was how the popular media had permeated the thinking of the mock jury. Not a soul among them seemed capable of critical thinking. If it was on TV, it must be true. Of course, many of the reports they’d seen were based upon nothing more substantial than a loose comment dropped in the hallway outside of court, but they had entered the canon as God’s own truth.

The jury hung, five to five.

Naturally, we were deflated. For my part, I was content to take what lessons we could from the session—specifically, the reaffirmation that black females would be a hard sell—and cut our losses. Not so, Don Vinson. He insisted we try again. This time, he wanted to go with a full-blown facsimile of a trial. We’d present more of the scientific evidence and maybe get an idea of how to simplify it. It was likely, he said, that a more detailed presentation would elicit more specific opinions than the knee-jerk loyalties we’d gotten in the first go-round.

I was uneasy about this. It was August now, nearly two months since the murders. If this case had had the normal life cycle of a major criminal trial, the media frenzy would have been slackening. But the madness was actually intensifying. It was a miracle that the results of the first mock jury had not gotten out. How would we keep the details of an even more elaborate dress rehearsal from leaking to the press?

Vinson agreed that keeping the experiment under wraps would be difficult. But the jurors, he said, were required to sign an oath of confidentiality.

“And what do we do if they violate this agreement?” I asked him.

Well, there was really nothing anyone could do, he conceded. But no one in his experience had ever breached an agreement of this kind. To assure secrecy, he proposed doing it out of state—specifically, in Phoenix, Arizona. No one would follow us there, he assured me. People weren’t as hot on this case outside Los Angeles.

So, on August 18, Bill and I met at the airport to catch a flight to Phoenix. When the idea of this trip first came up, Vinson had talked about flying us out on a private jet. He never came through with that. Instead, we were booked on a commercial flight. This should have been our first tip-off to the troubles afoot.

Bill and I hid out in the terminal bar, the only dark, quiet corner that would afford us some privacy while we waited for our flight. Immersed in reviewing our notes, we lost track of the time. Bill looked at his watch and yelped, “We’d better hustle.” We gathered our bags and sprinted to the metal detectors that separated us from the jetway. Just as I was about to send my purse through the metal detector, it hit me:

“Shit, I’ve got my gun in there.”

I’d forgotten to get clearance to carry it on board. Bill and I looked at each other, neither of us quite knowing what to do.

“Keep it for me,” I begged the security guard at the station. “I’ll get it on my way back.”

“No can do,” she told me. “You’ve got to fill out the paperwork.”

One look at her face told me she would not be moved.

“Go without me!” I shouted to Bill. Then I raced back to the ticket counter to find someone who could help me. One agent, a sweet and sympathetic woman, agreed to hold the gun for me. I thanked her breathlessly and was headed for the metal detector when I saw Bill walking toward me, forlorn, his suit bag over one shoulder.