Without a Doubt (31 page)

The rail is the three-foot-high wooden divider that separates the lawyers and parties to the action from the spectators. But its importance far transcends that of a physical barrier. The rail is an unofficial line of demarcation separating the players from the watchers.

Don Vinson wanted to sit with us at counsel’s table. I was opposed to that. The last thing we needed, in my opinion, was our jury—most of whom perceived their fortunes as blighted by accidents or crimes of social injustice—associating us with this well-fed, monogrammed, cuff-linked fat cat.

Vinson’s gall seemed all the more amazing in light of his record of broken promises. He’d assured us that he would come up with a way to give us a computerized profile of each juror. But when we’d sent him the questionnaires, he couldn’t deliver. The format, he said, didn’t lend itself to that kind of analysis. And Vinson apparently didn’t have time to read through them all himself, so he sent a kid fresh out of college to help us.

“How many jury trials have you observed?” I’d asked the kid.

“None,” he replied.

Bill and I looked at one another.

“Let him do his thing,” Bill whispered to me.

So we listened as this boy read dutifully through his notes. His efforts were well intentioned, but there was nothing there that two seasoned prosecutors could not have intuited on their own.

I thanked him for his efforts and sent him home.

As for Vinson, we didn’t hear from him again until a few days before jury selection. He’d called to say that he wanted to present the results of his “findings.” This time I demanded that he come to our office. We met in the room we used for press conferences. Vinson spread out a set of elaborate pie charts and graphs on the table in front of us.

His staff, he explained, had conducted phone surveys in which they had compiled demographic and personal data on those who refused to believe Simpson was guilty, those who were undecided, and those who were leaning toward guilt. His findings showed a wide racial divide. Caucasians tended to feel Simpson was guilty; African Americans tended to think he was not.

Duh.

I waited for some fresh insights, the flashes of revelation that would cause the scales to fall from our eyes. The most original of the lot?

“We found that people involved in bowling leagues tend to be anti-prosecution,” Vinson announced.

I couldn’t restrain myself. I burst out laughing. Even Bill was having a hard time maintaining his respectful poker face. Bowlers!
That’s
what we’d been waiting for?

The real shame of it all was that Don Vinson probably could have contributed something of value, if he’d had a clue. Instead of warning us off black women as a class—an utterly pointless exercise since we were going to have black females on that jury no matter what—he should have helped us fine-tune our questions in such a way as to identify the most reasonable and reachable African Americans, male and female, in our jury pool. Then, he could have offered some advice on how to reach them. Our biggest frustration stemmed from the fact that our repeated entreaties for that kind of help fell on deaf ears.

Now this guy was angling to sit in front of the rail! He wanted to be on national TV!

“No,” I said. “Absolutely and unequivocally no!”

But Garcetti reminded me that Vinson’s company had provided us with a terrific set of graphics. Which was true. And now wasn’t the time to alienate him, Gil insisted. So Bill and I packed up our notebooks and trekked down to court, followed by two law clerks, Vinson, and a parade of others from our office, all of whom wanted a front-row seat on the action.

By the time we got there, the cramped, plywood-paneled courtroom of Department 103 was packed to capacity with the jurors who had made it past hardship screening. The bailiff called the court to order. Ito’s clerk, Deirdre Robertson, pulled eighteen names at a time. The candidates took their place in the jury box. First the judge would question them. Then the defense. Then we would.

In California, it’s routine to have a judge ask jurors the tough questions, which in this case meant those concerning police credibility, domestic violence, and race. Conventional wisdom holds that jurors are more likely to be candid with a judge than with the lawyers. Jurors are generally impressed with the power the judge wields and will think twice before lying. Some of the questions, like “Have you or any family member been arrested?” could arouse personal resentments. Better they resent the judge than the attorneys.

Ito, however, seemed reluctant to assume the role of the heavy. He couldn’t bring himself to ask the tough questions. If, for example, he asked a juror, “Have you or anyone in your family been the victim of domestic violence?” and the answer was yes, he should have been prepared to press:

“Who was involved?”

“My father hit my mother.”

“Were the police called?”

“Yes.”

“How did that make you feel?”

“Pretty terrible…”

And so on.

But Lance was too delicate, too fearful of offending, to probe.

He floundered politely for a while, then finally said, “Ms. Clark?” He was turning the questioning over to me.

And so I stood to face the twelve in the box. No surprises here. The first batch was largely black, largely female. I had no illusions about this group. Their questionnaires indicated that they believed overwhelmingly that Simpson was innocent. But they’d be damned if they’d say that to me. I tried to get one young black guy to admit that seeing a celebrity on camera didn’t mean that one actually
knew
him—the point being that someone who seemed to be a real nice guy on the tube could still be capable of drawing a knife across a woman’s throat.

You’ve seen the defendant on television, according to your questionnaire, right?
I asked him.

I could see from the look on his face that he regretted admitting even that much.

A couple of times
, he replied.

Do you feel that you know him?

I don’t know
.

Well, has he ever invited you over to dinner?

No
.

Have you ever gone out to the movies with him?

No
.

Have you ever met his family? Ever talked about the weather, politics, or religion?

Of course, this elicited a litany of
nos
.

So, do you think you know him?

I guess not
, came the reluctant reply.

Jurors begrudged me even the most obvious answers for fear they’d say something that might get them dismissed. Bill seemed to fare no better. I was so frustrated that I even turned to Vinson to see if he had any suggestions. He was slouched in his chair, twirling his glasses, wearing a detached, supercilious expression. He looked to me like some indolent white plantation owner. I was astounded to see that he’d taken no notes. On the other side of the room, perky little Jo-Ellan Dimitrius, jury consultant to the stars, was busy scribbling on Post-its and passing them to Shapiro and Cochran.

When it came the defense’s turn at the plate, I was curious to see who’d lead off. Officially, Shapiro was still at the helm, although rumors reached me daily about the internal conflicts on the Dream Team. Cochran, I heard, would call for a meeting, and Shapiro would refuse to go. Or Shapiro’d insist on meeting at
his
offices, and Cochran would refuse to attend. This struggle carried over into the courtroom. Every time it was the defense’s turn to do something, you’d see Cochran and Shapiro muttering to one another about who would take it.

This time Shapiro must have won the flip. It was clear that Bob had gotten some heavy coaching. His style was still phony and self-important, but he handled himself surprisingly well. He zeroed right in on the sensitive topics and hit them head-on.

Of one well-educated and fairly conservative white woman he asked, “You also saw the freeway incident?”

“Yes… “

“And your conclusion was that O. J. Simpson was fleeing?”

“Yeah. I think he was. Yeah.”

“And then, after all of this was done, your opinion that he was probably guilty was made even stronger, was it not?”

“From what? I am sorry.”

In three more questions, he had her admitting that she did indeed think it made Simpson look guilty.

She was excused for cause.

Perhaps I should take a moment to explain this business of excusing jurors. Each side gets a certain number of peremptory challenges. In this case, we got twenty. These allow you to excuse a juror without giving a reason. If you don’t like the way he parts his hair or don’t approve of the books he reads, you can exercise one of these strikes, as they are also called, to send him packing. Once your allotment is used up, however, you can’t go to the cashier and get more. That’s why we guard our peremptories like thousand-dollar chips in a poker game.

What we prefer to do is challenge for cause. But for that you need grounds—for example, the fact that a juror has already formed such a strong opinion about the case that he or she can’t promise to render an unbiased decision. It’s important to note here that the law does not
require
that a juror be excused simply because he’s got an opinion about some part of the case—or even because he’s got an opinion about the defendant’s guilt or innocence. The question is whether or not the juror can set that opinion aside and entertain the evidence with an open mind. If he says he can, and you can’t prove otherwise, there is no basis for cause.

The number of challenges for cause is unlimited. Naturally, it’s better to get a juror booted for cause than to use up a valuable peremptory. So even when the grounds seem shaky, attorneys for both sides will pop up with “Excuse for cause, Your Honor.” It’s then up to the judge to decide whether to allow it.

Here Ito gave the defense wide latitude. He gave us virtually none. If, for instance, a juror had written that he found Shapiro “slick,” he was gone in a heartbeat, kicked for cause. If, on the other hand, a juror found me “pushy, too aggressive, too strident,” Ito refused to dismiss him. If we wanted that juror out of there badly enough, we’d have to use a peremptory.

If a juror uttered a remark that was even remotely pro-prosecution, that was grounds for excusal. I’m thinking of one young black man who theorized that Kato would probably be loyal to Simpson because he’d given him a place to live rent-free. I thought this guy would make a great juror. The defense moved to excuse him for cause, and Ito granted the motion. I objected that his opinion was a matter of logic, not bias. But it didn’t matter; he was gone.

The defense didn’t want anyone with an IQ above room temperature. They were kicking jurors simply for being too smart. This happened to one of the alternates, a chemistry student from UCLA. This guy was absolutely brilliant. I knew that he sure as hell was going to understand our scientific evidence, and you could see that he gave the Dream Team
agita
. Sure enough, they struck him with a peremptory.

The UCLA student had another drawback from the defense’s perspective: he was Japanese. People from Asian backgrounds, courtroom wisdom goes, are law-and-order types. Naturally, we try to get them on juries, and the defense always tries to keep them off. Defense lawyers have to be savvy about this, because if they appear to be targeting jurors on the basis of race, we can file what’s called a
Wheeler
motion. If it’s successful, the entire jury panel may be dismissed and jury selection will begin all over again. It doesn’t stop there. If a judge grants such a motion, he’s required to inform the state bar, and the offending lawyer can be reprimanded or fined, or both. It’s a real bad mark on your record. But it didn’t keep Shapiro from going after Asians.

There was one elderly Filipino man whose questionnaire indicated a law-abiding attitude. Bill and I knew the defense would find some way to get him off. Since there was nothing in his background that gave grounds for cause, they’d have to use a peremptory. Shapiro should have just struck the guy and moved on. Instead, he went out of his way to humiliate the man.

“Give us your definition of reasonable doubt,” Shapiro commanded imperiously.

It was an obvious attempt to demonstrate the man’s supposed language deficiencies. But asking him to define reasonable doubt? Not even legal scholars can agree what it is. The poor juror blushed, stammered, and asked Shapiro to repeat the question, which he did in an even more challenging tone.

I was absolutely furious. How could Lance, whose own ancestry was Asian, allow minority jurors to be treated like this? In fact Shapiro treated all nonblack jurors with this same sneering contempt. If either Bill or I had tried a stunt like that, we would have been called up to the bench so fast it would have taken your breath away.

Johnnie’s approach was entirely different. He was warm and smooth with every juror. He came from the “call and response” school of voir dire. Johnnie was stupid like a fox. His questions were general, nonconfrontational ones that required only a yes or a no. He made no attempt to draw out a juror’s real thinking. If you’re sure you have a jury pool stacked in your favor, the last thing you want to do is let them talk enough to let slip a basis for cause. Judging from the answers I’d seen on those questionnaires, the pool was packed with O. J. Simpson fans. Why expose them by probing too deeply?

Still, I liked Johnnie, if only because he gave me somebody on the defense side that I could talk to. By that I mean someone who could tack through the choppy swells of a criminal case without losing his sense of humor. Squaring off against Johnnie was fun—at least in the beginning.

He’d come into court and greet me with that big, easy smile. “You’re looking very lovely today, counselor,” he’d say. And I’d reply, “No lovelier than yourself, Mr. Cochran.”

Once, at a sidebar, I grumbled about “this fucking case—TFC”; Johnnie thought that was hilarious. He picked it up from me. His colleagues picked it up from him. By the end of the trial everyone was referring to this case as TFC.

The press caught on gradually to the realignment in our respective camps. At first, the talking heads tended to see this contest as Clark versus Shapiro: Bob and I were the combatants who scrapped with each other in court while our more levelheaded counterparts, Bill and Johnnie, sat back and steered the steady course. As we got further into voir dire, however, that perception changed. My office was still billing Clark and Hodgman as co-counsel, but that didn’t fool anyone. The press could see that I was too aggressive and loud to be anybody’s second chair, or even co-chair. I was the de facto lead on my side. And Johnnie was the lead on his. He’d pulled away, leaving Shapiro in his dust.