Without a Doubt (33 page)

If the defendant has counsel there to speak for him, he shouldn’t be allowed to speak directly to the court unless he’s prepared to take the witness stand.

I started to object, but it was too late. Lance had granted the request.

“How do you feel?” he inquired amiably of Simpson, who now stood, hands clasped in front of him, the very picture of wounded virtue.
How did he feel?

“Well,” he complained, “I feel I’ve been attacked here today.”

Attacked? Does he not get it that he’s the defendant in a double homicide?

“I’m an innocent man,” he continued. “I want to get to the jury… . I want to get it over with as soon as I can. I have two young kids out there. That’s my only concern… . I’ve got two young kids out there that don’t have a mother… .”

It disgusted me to the point of nausea to hear this man use his children this way.

And then Simpson turned toward me. I didn’t meet his eyes—not because I was intimidated by him; I just didn’t want to give him the satisfaction of knowing he had my attention.

“Mrs. Clark, Miss Clark, said I was trying to run,” he fumbled. “Everyone knows that I called my father-in-law… . I admit I was not in the right frame of mind at the time, I was trying to get to my wife… .”

“Excuse me,” Shapiro broke in, apparently agitated. It seemed to me that he was trying to create the impression that his client was straying out from under his control.

“I was headed back home,” Simpson continued.

Shapiro reared up theatrically and threatened to resign if his client kept talking. Finally, Simpson said, “Thank you,” and sat down.

Man
, I thought,
I’d love to get him on the witness stand
. That monster ego of his would trip him up so bad. He wouldn’t be able to keep his cool with a woman firing hostile questions at him. He was too unstable. If the Dream Team had an ounce of sense, they’d keep him off the stand and try to sneak in these unchallenged statements wherever they could. Just like this one. The saving grace of this outburst, I told myself, was that this hearing was closed and the transcript sealed. I sure didn’t want Simpson’s self-serving spiel reaching the ears of the jurors.

There was a curious atmosphere in the courtroom that day. It was actually pretty relaxed. The cameras were gone. Everyone loosened up a little. Both Shapiro and I let down our guards and vented our frustrations about the jury pool. Bob complained to the judge that jurors wanted to get on this case so badly, they were telling the court whatever they thought we wanted to hear. His implication: they were lying to get on this case so that they could convict O. J. Simpson.

I agreed that they were telling tall tales, but for quite the opposite reason.

“Many, if not most,” I argued to Ito, “are lying to the detriment of the People because they are sitting there as the fans of this defendant saying, ‘We want to get on this jury… so we can acquit this man, no matter what.’ . . . I wish that we could only put all the jurors on polygraph, because if the People could get just twelve fair-minded, impartial jurors to listen to the evidence, then we know what the outcome will be.”

The “polygraph” remark was a joke. Inside the courtroom that day, it was taken as a joke. Johnnie even laughed out loud. I didn’t think any more about it. I was more self-conscious about having accused our jurors of lying. But, again, I comforted myself with the fact that this session was closed, the transcript sealed. I had no reason to believe that that L-word would ever reach their ears.

By the time the session came to an end, Ito had checked the penal code, which confirmed what we all knew. The law would not allow bail for O. J. Simpson. End of debate. But not the end of mischief.

Bill requested that the transcript of this closed hearing be kept under seal.

Shapiro rejoined, “We want it open.” The defense clearly wanted Simpson’s unsworn testimony to become public for the edification of the jury pool.

“Judge, you can’t do this!” I protested frantically. “This is very incendiary… both sides accusing the jurors of lying. The defendant making an uncross-examined, unsworn statement about his innocence. None of this is fair. None of this is right.”

Ito released the transcript.

As I look back upon this episode, I still can’t figure out what possessed Lance. I know he was coming under a lot of pressure from the media, but that’s not enough to have caused him to act so unwisely. Lawyers need to know that there is someplace they can talk where their statements will be held in confidence. They shouldn’t be lulled into a false sense of security, then have the rug pulled out from under them. He could have kept the transcript sealed and never worried about being reversed on appeal. I think his heart was in the right place, but he was so weak. He let himself get pushed around by the defense.

I was totally screwed. I’d accused the jurors of lying. Can you imagine having to go back in and talk to these people after they read the L-word in their morning paper? I learned my lesson: never say anything in chambers or closed hearing that you wouldn’t say in public.

By the next day, those transcripts were everywhere. Shapiro exploited the opportunity to hold me up to ridicule. Oddly, it wasn’t the L-word he seized upon. I guess that’s because he, too, had accused the jurors of lying. No, it was the P-word. The “polygraph” comment, he told reporters, “was the most idiotic statement ever made in a court of law.”

Johnnie Cochran knew perfectly well that my polygraph remark was intended as a joke. But now he joined Shapiro in insisting that the remark had been serious. I just shook my head and thought,
I’ve lost all my respect for you, Johnnie. You’re a two-faced, hypocritical bastard just like the rest
.

CAR TAPE.
October 1994. I’d like to see us abolish the jury system. Why leave the fate of our nation in the hands of these moon rocks?

After the Resnick fiasco, a lightbulb popped on in Lance’s brain. He realized, finally, that he had to do something to protect the jury pool from taint. So he started bringing jurors in one at a time for questioning—as we’d asked for from the start. And for the rest of the voir dire he limited the press to one pool reporter in the courtroom. The pool arrangement, however, only served to make the reporters now milling outside the locked doors more desperate for news from the inside. Johnnie and Bob took full advantage of this situation. Each convened his own daily press conference to fulminate over some new outrage. And on October 27, they dealt Bill Hodgman an ugly, low blow.

Bill had been questioning an elderly black man from South-Central L.A. He’d asked the guy, “Do you know what a polygraph is?” What he was trying to get at, of course, was whether the fellow had read my jurors-are-lying-their-heads-off comment and whether he had been offended by it.

The man shot back, “You’re pumping me as if I’m on trial or something. So I don’t like that. You are sort of riling me.”

Bill ended the questioning as gracefully as possible and sat down. He was stunned. So was I. Bob and Johnnie saw their opening. During the next break, they ran out and held a pair of press conferences. Bill, Shapiro charged, was trying to get jurors removed for cause “because they are black, because they have black heroes and because O. J. Simpson is one of them. There is no other reason.”

On another floor of the courthouse, Johnnie was busy making the same baseless charge. “We’re really concerned about the tenor of the questions and the way they go after certain jurors,” he said. “If there is a pattern, we’ll be asking the judge to look into it.”

I couldn’t believe it.
They harass Asians, they boot nonblacks at every turn, and they accuse
us
of targeting minorities?
Blacks made up nearly 60 percent of the initial jury pool. We couldn’t have gotten rid of them if we’d wanted to. The defense ended up bringing a raft of
Wheeler
motions against us, but we came prepared with a list of reasons for every black juror we excused. And they couldn’t make a dent in us.

It was clear that Johnnie and Bob’s intent was to poison the jury pool with insinuations of racism. And they succeeded. Several days later, Bill drew a black woman to question. We really had high hopes for her. She wore a smart, tailored business suit and had smiled at me warmly during the hardship questioning. Bill had just begun his very gentle questioning when she fixed him with an angry glare. “I don’t know. You make me feel like I’m on trial here, really.”

She’d obviously read the news accounts about the juror who’d felt “riled” and decided that she, too, would jump on the race bandwagon.

A look of shock and panic passed over Bill’s face. He struggled to find words to reassure her and then defuse the situation. But he was mortified.

I could see that this process was just tearing him to pieces. After that, we agreed that I would question nearly all the remaining black jurors.

We finished the formal voir dire early in November. By now the jury pool had been winnowed down to under fifty bodies. We had one last shot at them. Each lawyer was allowed seventy-five minutes to make an eleventh-hour pitch, hoping to evoke a reaction that might help us in the final selection. I decided to throw away the rule book and shake these people up a little. Somehow, I had to get them to confront their own racial anger. I needed them to consider how hero worship might distort their judgment. But how could I get them to admit to me things they might not even have admitted to themselves?

When it came my turn to speak, I hesitated a bit. I looked at the faces. Again, mostly black, overwhelmingly female. It was important to start off on the right foot. Whatever happened, I didn’t want these people thinking that I was condescending to them because they felt some sentimental fondness for the defendant.

“We’ve all seen
Naked Gun
,” I told them. “He made us laugh… . We’ve had him referred to as the all-American hero… . And that’s why it’s so very difficult to have to present to you that someone of this image can do a crime so terrible.”

They were looking at me as if to say,
We can’t believe she’s saying this
.

He’s such a famous guy, I continued. He’s such a popular guy that there’s going to be a real temptation to do something different than what the law requires. This is a horrible situation, none of us like it, but that doesn’t mean we suspend the rules of evidence. Just like in a football game—it’s always a hundred-yard game no matter who’s playing it. It doesn’t matter if Mr. Simpson’s on the team, it’s still a hundred-yard game. It doesn’t become an eighty-yard game, and it doesn’t become a hundred-and-twenty-yard game, either. Rules are rules.

I reminded them that there were a whole lot of angles to this case: interracial marriage, a black defendant, white victims, spousal abuse. Which one of these do I have to worry about with you? I asked. Are you guys going to vote on the basis of one of these agendas? Are you going to try and even some score you’ve got in mind? You all agree with me that that would be wrong? That the place to even the score is the ballot box, not in this courtroom?

A few of them nodded yes.

“Is there anyone here… rooting for one side or the other?”

No nods this time. I continued:

“I don’t care which side it is. If you are sitting there rooting for ‘guilty’ right now, I want you to get up and have the honor and the decency to excuse yourself from this panel.” Same thing, I told them, went for those who were sitting there rooting for a verdict of “not guilty.” “If you’ve decided how this case should end, then you cannot be fair.”

And how about all these conspiracy theories? I continued. The Mafia did it. A Colombian cartel did it. A crew of white burglars did it. Are you going to make me convene the trial of the People versus the Mafia? Are you going to make me shoot down all these screwball theories before you’ll listen to the evidence? How many trials do I have to do here? You could make the evidence fit anything, but that’s not justice. I reminded them of Rodney King.

That case was in trouble from the very start, wasn’t it? Because it had an all-white jury in a police community. And with a videotape, the most slam-dunk case you could possibly imagine. Our office lost that case, and we all know why.

“Do you know that had something to do with the fact they were being tried… by a jury that was all white? That it was tried in a community where a lot of police officers lived?”

Murmurs of “Probably…” “Yes…”

That’s what happens when you don’t listen to the evidence, when you vote on the basis of some private agenda.

Bob Shapiro objected to what he called my “unprofessional conduct.” It is against the canon of ethics for a prosecutor to criticize or comment on a verdict to a potential juror. My comments, he said, were deserving of “severe sanctions.”

That was technically true. So I apologized to the court. Then I looked at the jurors point-blank. “I hope I did not offend you with any of the comments I made concerning the Rodney King verdict… . Have I?”

The whole bunch of them smiled and gave me a rousing “No.”

Shot yourself in the foot, Bobby
.

For a moment there, I felt those jurors were with me. I’d gotten right up there in their faces, but they didn’t seem to hold it against me. They seemed galvanized. I really felt that some current was flowing between us. Bill leaned over.

“Little white girl up there talking about race issues,” he said. “One of the most dramatic moments I’ve ever seen in a courtroom.”

The following day, we went in ready to kick and pick. That’s the term we use for the last volley of the twenty peremptory challenges to get the pool down to twelve. So Bill and I got right in there and mixed it up. We kicked and we picked with a vengeance. And what we ended up with was one white woman, one man who described himself as “half American Indian,” two Hispanics, and eight blacks. Six of those blacks were females.

By the end, we still had four of our twenty peremptory challenges remaining. That’s right: we didn’t use every single one that we were entitled to exercise. I can understand why a casual observer could assume that we missed an opportunity because of this. And, in fact, our detractors seized upon those four unused challenges, claiming that we could have kicked some of the clinkers and fill the slots with better prospects.