The Search for Justice (31 page)

A few days later I was invited by Art Harris, the CNN correspondent who had been reporting on the case, to have dinner with
Tom Johnson, a former editor of the
Los Angeles Times
and current president of CNN. We talked about tabloid journalism and whether or not the First Amendment could be passed today.
Johnson and Harris both said they didn ’t believe it could.

“If I were a journalist watching this case,” I said, “I ’d want to know if the money that the people of California were paying
was being well spent. Whether the district attorney ’s office was doing a good job, whether they were understaffed, the way
they keep claiming whenever they can ’t provide us something, or if they have adequate resources. I ’d want to know how many
other murder cases they ’re trying while they ’re putting on this one, and how the resources available are comparable.”

We discussed the increased role of DNA evidence in criminal trials. Tom Johnson was concerned that scientific evidence seemed
to be used solely for the purpose of convicting someone. I told them a bit about Scheck and Neufeld ’s work with the Innocence
Project.

And, of course, they wanted to know if television cameras were going to be allowed in Judge Ito ’s courtroom. “Three weeks
ago it was a sure thing,” I told them. “Now, I don ’t know which way he ’s going to decide.”

“Why doesn ’t he let the cameras go in,” suggested Art Harris, “and have them turned on and off at the attorneys ’ discretion.
At the end of the trial, the tapes could be edited and then used solely for educational purposes, not for commercial ones.”

I rolled my eyes at that one. The prosecution and the defense attorneys would argue over when the cameras should be on or
off. They ’d argue over who would edit the tapes and how. And then there would be arguments about whose educational benefit
the tapes were for. And, of course, the tapes would be leaked. And then everybody would have to be subpoenaed. And they ’d
all bring
their
lawyers with them. No, I told them. As anxious as Ito was to do the right thing, I knew he ’d either have the cameras all
the way on or, if he changed his mind, all the way off. My belief was that we ’d have cameras.

“Bob, if you were president of CNN,” queried Johnson, “how many countries would you air this trial in?” At the time he was
thinking about airing it in around forty countries. Later the count went close to two hundred.

Faye Resnick ’s book,
Nicole Brown Simpson: The Private Diary of a Life Interrupted
, landed on the jury selection like a bomb.

The day of October 18 started off badly. Johnnie and I arrived at court to find that Ito had denied all of our motions for
exclusion of DNA evidence, in spite of “telegraphing” Marcia Clark the week before that some of the prosecution ’s evidence
was going to get thrown out. This was because we had documented that the prosecution had failed to complete its testing in
a timely manner. They ’d had this material for three months and hadn ’t sent it out for analysis, but no one could explain
why this was. Ito had even indicated that he was considering sanctions against the prosecution. “You had your chance before,”
Ito told them. “I ’m not going to consider this.” While I ’d expected to lose part of the fight, it was a significant setback
to have lost all of it.

The first order of business was a discussion in Judge Ito ’s chambers about the imminent release of Resnick ’s book and what
effect, if any, it might have on our jury candidates. Co-written with Mike Walker, a
National Enquirer
editor, it was a sleazy “reconstruction” of the last months of Nicole ’s life and
a sad commentary on what Resnick alleged was the loving friendship she shared with Nicole. I thought it was the height of
irony that the pundits had been mistakenly assuming for months that we would impugn Nicole ’s character as part of the defense
strategy, and here her “best friend” was doing it instead. There she stood, safely behind the shield of the First Amendment,
during what she and her publisher knew was still an ongoing and unsequestered jury selection. As Greta Van Susteren was later
to observe on CNN, “A book that ’s this tawdry, this sort of mean-spirited, suggests something far more than news. It suggests
that someone is greedy and wants to make money.”

No one knew for sure when the publication date was, so Judge Ito ’s clerk called Dove Books directly. We were dismayed to
hear that the book had hit the newsstands that very morning. I suggested that we excuse the jury for a long lunch break so
that everyone else could examine the book.

When Ito excused the jury panel for the lunch break, he made a poor judgment call by suggesting that they go to the nearby
mall to get an early start on their Christmas shopping. At the mall there ’s a big chain bookstore. Resnick ’s book was one
of their “picks of the week.” That afternoon, I was unnerved to see that a couple of jurors had returned with bags from that
very bookstore.

After Judge Ito and the defense and prosecution attorneys read the book during the break, I requested a recess until the next
day, so that we could all consult and try to formulate a plan for damage control. The book itself was one thing; the press
furor that was even now heating up to accompany its release would only raise the stakes.

Ito then ordered a temporary halt to jury selection, instructing the jury to return in two days. As they left, he said to
them, “Oh, I neglected to tell you, you are to stay out of bookstores.” It reminded me of that old psychologist ’s joke where
you tell someone not to think of elephants—at which point all they ’re able to think of is elephants.

For the first time since the case began, Johnnie and I gave a joint statement to the press. I said, “I ’ve had a great fear
that O.J. Simpson could not get a fair trial; after the events of today I ’m
convinced
that he cannot get one.”

Johnnie criticized the judge for his ruling on the late DNA evidence. “We thought we ’d be able to get twelve people who would
judge this case solely on the evidence they ’d hear in court,” he said. “Now I don ’t think that ’s possible.”

That afternoon Johnnie and I, with Sara Caplan, had a conference call with Bailey in Florida, Uelmen in Santa Clara, and Dershowitz
in New York. Bailey started things off, and he was as angry as I ’d ever seen him. “Gentlemen, this is war and we have to
start treating it as such! We must be very, very aggressive and immediately move to have the case taken away from Judge Ito;
file a writ of mandamus in the California Supreme Court; ask that it be transferred to federal court. Severe sanctions and
remedies must take place!”

Dershowitz agreed that we should take a more aggressive position, but Cochran and I argued that we didn ’t want to file a
motion that we were sure to lose, and delay the case even longer. “Gentlemen, it ’s time to get tough!” Bailey insisted.

“We don ’t want any more delays,” I said, “and at this point we ’re doing better with the jury selections than the prosecution
is. We have to find a way to protest this strongly, and make a legal record of it, without crashing the whole thing. The appellate
court is just waiting out there to get their hands on this. I don ’t want that to happen.” We began to formulate a plan of
attack.

On October 19, I presented a motion before the judge, in a closed courtroom. Gerry Uelmen had worked late into the night on
the motion we had all met early that morning to review. In it, we asked for two things: one, to continue the trial for one
year and to grant bail to O.J., releasing him under stringent conditions of house arrest, “allowing the frenzy that has taken
place to die down, and allow an opportunity for a fair trial to be presented”; and two, to investigate a conspiracy among
Faye
Resnick, her attorney, the
National Enquirer
, and Dove Books to deprive O.J. Simpson of his constitutionally guaranteed right to a fair trial, to plant false and misleading
information in the minds of the jurors, and to seek financial gain. Dershowitz had added that we did not want a sequestered
jury, and we did not want a change of venue.

Emotions, mine and everyone else ’s, ran high throughout the arguments of this hearing. The judge, of course, ruled against
my motion, and I objected strenuously. O.J. couldn ’t stop talking at the counsel table, and at one point I admonished him
that if he didn ’t be quiet, I ’d quit as his lawyer. The “threat” made it onto that night ’s news.

During the discussion, Marcia made a flip remark about prospective jurors lying to get on this jury, that she wished they
all had to take polygraphs. I later said that was “one of the most idiotic statements made in a courtroom anywhere,” and I
meant it. I don ’t think I ’ve ever had an angrier day in a courtroom.

That night I was awakened by some radio talk show host calling on my direct line at home. The first time, I hung up on him.
He called back. “This is a private residence,” I snapped. “I view this as a serious invasion of my privacy and ask you please
not to call back here again.”

To his credit, the man said, “I understand, I apologize,” and he hung up. I had the feeling the brief exchange had been broadcast
on the radio, live.

The following day, Judge Ito asked both prosecution and defense to join in a motion to close the proceedings to the public
and press. He anticipated arguments from the media, but he believed that if we presented a united front on this issue, it
would strengthen his argument. In addition, we would now voir dire the jurors individually, away from the rest of the panel.

I had always been in favor of open courtrooms and televised court proceedings. Now I found myself in the ironic, uncomfortable
position of agreeing with the prosecution and a very conservative judge that the press and public should be banned.
I suspected, however, that without an “audience,” we might get more honest answers from the jurors.

Although the press covered Ito ’s closure of the courtroom very negatively, the jurors did seem to be more comfortable when
there was just one of them at a time in the room. They were certainly more forthcoming. Three admitted that they had watched
television in the two days that Ito excused them: one saw the news, one watched a program on clairvoyants on PBS, one watched
The Movie Channel. We also discovered that several jurors knew of Resnick ’s book and had heard some of the furor surrounding
it. Some had become aware of it only because of Ito ’s instruction to stay out of bookstores. Quite naturally, when they went
home or to work, someone told them why bookstores were off-limits. Then there was the one woman who said, “I come home, I
go in my room, I do my ironing, I play Nintendo.” There were others who resolutely assured us that nothing, absolutely nothing,
could affect their fairness. Certainly such overeager people might have agendas of their own, and they were clearly jurors
we did not want.

Throughout the upheaval surrounding the first few days after Resnick ’s book was published, O.J. appeared less upset than
his defense counsel. She had accused us, and me in particular, of trying to stop the book in advance of its publication and
claimed that tapes she ’d recorded had been stolen. But O.J. did his best not to let it bother him. He knew it was full of
mistakes; in fact, a couple of the errors were so ludicrous he actually laughed out loud. Faye ’s former boyfriend appeared
on Barbara Walters ’s show and was quite critical; Cora Fischman spoke to one reporter and referred to Resnick as “Faye the
Flake”; Nicole ’s father, Lou Brown, had publicly called the book “trash.” I suspected that nothing would slow down sales,
but I hoped that it could be seen for what it was.

Ito had asked a professor at Harvard Law School to have students prepare memorandums on whether or not media should be allowed
in the courtroom. Six memorandums arrived, making articulate cases for both sides of the issue. After studying
them carefully, Johnnie and I found ourselves reconsidering the question of excluding the media from the trial. Finally we
went to the judge and told him that we ’d changed our minds. As uncomfortable and cumbersome as the whole thing sometimes
was, the American public had a right—possibly even a need—to see and understand what goes on in its courtrooms. It was clear
that no one was going to understand those five amendments in the Bill of Rights unless they saw them implemented in a concrete
situation.