The Search for Justice (19 page)

The following afternoon, Gerry Spence flew into Los Angeles. Fifteen years before, my friend Richard Sherman, a noted criminal
lawyer, had gone to Spence ’s Trial Lawyers College in Wyoming and brought back a tape of his voir dire of a jury. What I
heard was revolutionary: a lawyer not only ingratiating himself with a jury but asking risky, open-ended questions that brought
back amazing and telling responses. He addressed the negative aspects of his case with these potential jurors, extracting
a pledge from them that these negatives wouldn ’t be held against his client when the time came to deliberate. It was sheer
brilliance.

An expert in psychology, with a strong belief that everyone is worth rehabilitating, Spence advocates forming an emotional
relationship with a client, contrary to what students are often taught in law school. Critics may carp at his Western attire
(no suit for him—he wears cowboy boots and a soft buckskin jacket in court), his down-home approach, and the likelihood that
outside of Wyoming his style might not play. But in New York City, where more attention was paid to his wardrobe than to his
presentation, he won an acquittal for Marcos. His record of civil victories is unprecedented, besting corporate giants like
McDonald ’s, Aetna, and, in the Karen Silkwood case, Kerr-McGee.

As a legal junkie, I have always followed the careers of great trial lawyers, and I had always wanted to try a case with Spence.
We finally met at a criminal law seminar in Aspen some years ago. We had both brought our wives, and Linell and I were amazed
to find that Spence ’s wife (whom he calls Imaging) is really named LaNelle. When he came to Los Angeles to meet with me,
I arranged for him to stay at the home of my dear friend Michael Klein (who was out of town), where we could have total privacy
for what I knew would be a long conversation.

From the minute he arrived, he made no secret about his desire to be involved in O.J. ’s defense. “I ’m an old trial lawyer,
Bob,” he said, “and this is the case of the century. I want to be part of it.” We talked about his philosophy of trial law
and the role of the team approach in a defense. “It ’s just like a jazz band,” Gerry said. “Everyone has to play together.
But every once in a while someone gets a solo.”

I had some concerns about Spence ’s limited knowledge of DNA, but he assured me he could easily get up to speed. “Bob, you
have to keep in mind that the jury has to understand this stuff, too,” he said. “We have to keep it simple. Maybe we attack
the science, maybe we accept the science. It ’s gotta be done in a way that ’s understandable to a jury.”

The real drawback to Spence was his schedule: The months of August and September were out for him, because he was running
his trial school at his ranch in Wyoming, with fifty lawyers who had been handpicked from around the country already committed
to attend. He suggested that he would have some of the lawyers from his own firm come to L.A. to work with me and that we
in turn could go to the ranch and brief him, but I knew that it just wouldn ’t work in this case. I needed someone here hands-on,
every day. As much as I regretted it, I realized I couldn ’t hire him.

Later on, when Spence was interviewed and asked about the team approach to a criminal case, he said that for him, trying a
case is like Picasso making a painting: Only one person can control the brush. When Alan Dershowitz and I were in the car
on the way to court a few weeks later, I repeated the jazz band
versus Picasso analogy, and he laughed. “Spence must ’ve been talking about Picasso ’s jazz band,” he said.

Johnnie Cochran got back into town the following week. Michael Jackson had given him the go-ahead to join the Simpson defense.
On July 1, we met at my office. I told him that I was authorized to bring him on board. He accepted enthusiastically.

We never talked in terms of lead counsel and second chair; it was, to me, a joint effort. Initially I was referred to in the
press as the lead trial lawyer; within a couple of days I was being referred to as co-lead counsel. I had no problem with
our relationship, since it fit my concept of how we would work together. Fittingly, we used an analogy to football. There
would be a team owner and part-time coach: O.J. Then there would be the quarterback: me. I would be O.J. ’s Joe Ferguson,
who had been his quarterback on the Buffalo Bills. And then the quarterback would hand off to somebody as good as O.J. Simpson,
and that would be Johnnie Cochran.

In that first meeting, Cochran and I discussed the issue of race, and our hope that a black lawyer and a white lawyer working
together on behalf of another black man would be a good message to send. He then told me that because his law practice was
primarily civil, and because he had a great deal of legal and clerical support in his offices, he would continue to maintain
his civil calendar, which produced substantial income, during the Simpson trial. We shook on our new relationship, agreeing
to keep our collaboration confidential (not even telling O.J. and the other members of the team that the decision was definite)
until we got to court on Friday, July 22, for O.J. ’s arraignment. However, NBC reported the night before that Cochran was
definitely joining the defense. I supposed it was because he ’d told them he wouldn ’t be commentating for them anymore.

Friday morning, Cochran and I met at my office and we went together to the courthouse, where two or three hundred people,
not to mention satellite dishes and sound trucks, were
waiting for us. Eight uniformed officers tried to cordon the people off, but the cameras and microphones came at us as we
walked into Judge Cecil Mills ’s courtroom.

Judge Mills took the bench promptly at 9:00
A.M
., announcing that his selection to hear the case was Superior Court Judge Lance A. Ito. This came as a surprise to me. Judge
Paul Flynn, a law professor and former assistant U.S. attorney, had been the original choice, and we were comfortable with
him. However, I was told that at the last minute, Ito had lobbied for the position. Speculation was that since Judge Flynn
belonged to a country club that had previously been restrictive, his presiding over the case would ’ve been either objected
to by us or a potential cause of embarrassment to the superior court. In my opinion, neither would ’ve been the case.

Judge Ito had been the presiding judge on the Charles Keating securities fraud trial (which Bill Hodgman had successfully
prosecuted) and afterward had been named Trial Judge of the Year by the Los Angeles Bar Association. I ’d had previous experience
with him, the most recent, of course, when I presented our motion to recuse the grand jury; and I thought that not only was
he very smart, he was also the most desirable on the list of predominantly pro-prosecution judges.

Almost every judge appointed in the state since Ronald Reagan was California ’s governor has been a former prosecutor, either
from the district attorney ’s office or the U.S. attorney ’s office, and for that reason it ’s not unusual to run head-on
into a pro-prosecution agenda on the bench. Governors reap political capital when they appoint “tough” judges who impose maximum
sentences and aren ’t swayed by the “legal loopholes” that the rest of us call the Constitution. Judge Ito, I believed, could
be counted on to be balanced.

Judge Mills made sure that we all knew that Ito was married to an L.A.P.D. captain, Margaret York (the highest ranking woman
officer at the time). If any of us felt that fact would be prejudicial to our case, we could request another judge. However,
I said that Judge Ito was acceptable to us. I was later to
learn that Captain York and her former police partner, Helen Kidder, had been the original inspirations for the television
show
Cagney and Lacey
.

Judge Ito proved to be a man of great contrasts. A graduate of UCLA and UC Berkeley ’s Boalt Hall Law School, he certainly
had the academic credentials for excellence on the bench. His physical appearance and demeanor sometimes suggested harshness,
but his heart was filled with compassion, learned from his family ’s experiences in the Japanese internment camps in California
during World War II. In fact, the judge wears his heart on his sleeve, treating people with patience and respect, expecting
that common courtesy to be returned. He dislikes controversy, and throughout the Simpson trial, whenever he had to sanction
a lawyer for unprofessional conduct in the courtroom, he later either apologized or said, “I don ’t want this to be personal.”
On occasion he would retire to his chambers for his soon-to-be-famous “ten deep breaths,” and then return as if nothing had
happened. He strove for balance and pragmatism. I would come in each day and say, “Good morning, Your Honor.” His response
was always, “So far.”

That Friday, July 22, I finally saw the change in O.J. ’s demeanor that I had been looking and hoping for. No longer on suicide
watch, no longer on medication, he seemed to have passed through the initial period of depression and shock. His eyes were
clear and his back was ramrod straight when the judge asked him how he answered the charges against him. “ Absolutely, 100
percent not guilty,” he said in a strong voice. It had been forty days since his arrest, and my client seemed at last the
strong and confident O.J., the one we needed at the defense table. The next few weeks, which to our dismay would turn into
months, would be taken up with legal procedures, including hearings, motions and countermotions, debates on blood typing,
evidence inclusion and exclusion, and, eventually, the selection of the jury. Each step is part of creating a trial ’s road
map, what one publication called the “pre-trial jockeying for position”—not the first time we would hear a sports analogy,
as news anchors and commentators began to refer to the trial as if it were a game, with the score being posted daily.

After O.J. was returned to lockup, Johnnie and I left the courthouse through a throng of cheering well-wishers, an army of
photographers, and some new and somewhat bizarre additions: noisy hawkers of customized O.J. T-shirts and baseball hats, someone
from the Jewish Defense League yelling slogans, and people from the Women ’s Action Coalition who were walking around in masks
made to look like Nicole.

On Saturday, Linell and I slept late, then spent the rest of the day—the first in a long time—just resting, reading around
the pool, and throwing the ball to the dog. The kids weren ’t home; Brent was at a friend ’s house for the night, and Grant
was due in the next day from ice-hockey camp. We ordered out turkey from Koo Koo Roo ’s, a restaurant that kept us all in
protein throughout the entire trial, and we rented a video. It was, I knew, a small calm between storms.

Sunday morning, July 24, Johnnie Cochran and I met at the county jail, he in a suit, I in jeans and a Connecticut State Police
baseball cap I ’d gotten from Henry Lee. We visited O.J. together on the third floor. He was behind glass, and the three of
us had to converse on phones, O.J. holding one to each ear so he could hear us both.

In an effort to fill Johnnie in, we retraced what was now familiar ground, with O.J. repeating over and over that more than
anything he wanted to be with Sydney and Justin. Although I could see that he was pleased to hear of polls reporting that
60 percent of the black population and 30 percent of the white population believed he wasn ’t guilty, I knew he wanted 100%
of both populations to believe it.

After I drove Cochran home, Linell and I went to the airport to pick up Grant from hockey camp; it would be a quick turnaround
for a ten-year-old, since he was scheduled to check into Magic Johnson ’s basketball camp that very night, but this was a
schedule he had dreamed of for months. As we drove, I received a call on the car phone from Peter Neufeld in New York,
stressing how important it was that we get access to the blood samples and duplicate the tests. Neufeld and Scheck wanted
to examine further the possibility that there had been tampering. I thought our argument to the jury should be that the prosecution
’s evidence had been improperly collected and preserved, was quite possibly contaminated, and therefore shouldn ’t be admissible.
Neufeld told me that Scheck was in San Diego and would meet me at the office the next day so we could hash this out further.

When we arrived at the basketball camp in Thousand Oaks, I went with Grant for his late check-in. As we walked, the kids already
assembled for drills suddenly started a “Go O.J.!” cheer. In minutes, some of the coaches had walked over to shake my hand
and wish me good luck. Grant just looked down at his feet. I hoped it was only because he was self-conscious at checking in
late, but I suspected that part of his discomfort was the growing hoopla.

E
veryone who came into the courtroom (especially after seeing it on television) was shocked by its intimate size. The spectator
section (capacity: fifty-eight) is directly behind the lawyers ’ counsel tables, which in turn are less than a dozen feet
from the judge. On their side of the room, the prosecuting attorneys can literally reach out and touch the jury. We presented
a motion to switch sides midpoint during the case, so that we could take our turn being close to the jury. To no one ’s surprise,
this unprecedented motion was summarily denied.