The Search for Justice (34 page)

For months, I had admired the courage and dignity evidenced by the Browns and the Goldmans, and I respected it. I don ’t know
that I could have behaved with anything approaching such grace if it had been one of my children who had been murdered. These
people had all lost so much already. I had hoped, not just for my client ’s sake but also for theirs, that at the very least
their privacy and dignity could be protected.

There was, of course, no way on this earth for me to express those feelings without sounding patronizing and condescending
to the families. Yet I made the mistake of doing so, in response to a reporter ’s question about the potential prejudicial
nature of Denise ’s remarks, and those of Lou Brown and Fred Goldman. I then compounded my mistake by saying that we understood
and forgave them for the things they were saying, because of their heartbreak. My words were poorly chosen, and Fred Goldman
in particular was understandably outraged.

I later gave a statement to the press at the courthouse, emphasizing that I ’d had no intention of patronizing the families
or their pain. For our side, from now on we were going to limit our comments to legal procedure or to clear up any questions
after each day ’s session. There would be no interviews.

A few days later, three prospective jurors were excused from the panel after stating that they ’d heard or read the Denise
Brown interviews, in which she said “O.J. did it.”

At the end of November, Peter Neufeld called in a panic. He was scheduled to participate in a murder trial—admittedly one
to which he ’d made a commitment some months before—in New York City. The trial was to begin at around the time our Kelly-Frye
hearings on the admissibility of DNA evidence were scheduled. The New York judge, Harold Rothwax, had ordered Neufeld to appear
at the trial.

Judge Rothwax told Judge Ito that Neufeld would be needed
for only two weeks even though the lawyers had agreed the trial would take six. Ultimately it would take eight.

Even though we hadn ’t yet started calling witnesses, our jury had been seated: technically, our trial was under way. We couldn
’t afford to lose Neufeld, so I requested Judge Ito to issue a court order directing Neufeld to appear for O.J., hoping the
tactic would convince Rothwax to allow Neufeld to stay in Los Angeles. Ito issued the order, but Rothwax was not persuaded.
He ordered Neufeld back to New York under penalty of contempt of court, at which point Barry Scheck said, “Bob, there ’s too
much work to do alone, I ’m going to need some help.”

For a time I thought that this might be a place for Lee Bailey to actively participate in the trial. Ever since the day of
O.J. ’s Bronco ride, Lee had been on the team essentially as a consultant, overseeing McKenna and McNally and working with
his computer expert, Howard Harris, to get the case material into a system that we all could use.

Bailey continued working on his own cases, frequently heading back East. But he had stayed involved with the Simpson case,
visiting O.J. and attending defense team meetings at my office. He raised Bonnie ’s hackles on a regular basis, telling off-color
jokes that invariably had a prurient punch line, or issuing sweeping orders about computer equipment or filing systems. His
mood sometimes swung from grandiose to silly, and he often went off on tangents. But he was, above all, two things: He was
the legendary F. Lee Bailey, and he was my old friend and mentor. “Someone has to do Kelly-Frye with Scheck,” I said. “Maybe
it could be Lee.”

The response to my suggestion wasn ’t particularly enthusiastic. After all, if we were losing a DNA expert, shouldn ’t we
replace him with another DNA expert?

Barry Scheck had put together a thirty-five-page memo detailing what he believed our strategy should be with regard to the
scientific evidence, and he readily agreed to meet with Lee to see if he could be brought up to speed. Scheck wasn ’t optimistic.
He didn ’t doubt Bailey ’s abilities, but he felt there was a
certain depth of expertise that could only be obtained by having fought in the trenches of the DNA wars for years, as he and
Peter Neufeld had done. Not only that, but whoever countered the prosecution ’s DNA experts had to do it carefully, with finesse,
not shred them on the stand, as was Bailey ’s style. As an alternative, Barry mentioned Robert Blasier, a lawyer colleague
in Sacramento.

I remembered reading a profile of Blasier in the
Daily Journal.
He had received an undergraduate degree in engineering from Carnegie Institute of Technology and his law degree was from
Harvard Law School. He had extensive experience in medical and scientific issues, especially DNA, and he ’d served as an expert
witness for both the defense and prosecution when admissibility of DNA evidence was in question. He had also been a legal
analyst on both local and national television.

Blasier, a scholar and scientist with a great wit, was ideally suited to the Simpson case. Competitive and seemingly tireless,
he had a calm, logical approach to the law and its intersection with science. The bonus came when we found out he was a computer
whiz as well. He had a laptop with twice the memory of the one that Bailey had shipped from Florida. Even better, Blasier
was able to immediately access all the material in the court reporter ’s transcription software.

Once Blasier ’s laptop was in gear, we had immediate access to each day ’s proceedings, as well as all discovery material,
the evidence inventory, all motions and responses, and the full set of California legal codes. It was as though the man had
an entire law library on his lap. His system was so good that when questions came up in court on past testimony, Judge Ito
would often query Blasier, who could instantly locate the sought-after information. In addition, until Blasier ’s arrival
we had been working with several talented graphics companies to prepare exhibits and demonstration boards. Blasier was able
to create similar graphics as he sat in the courtroom, providing them overnight for use in court the next day. What looked
like a crisis turned into a blessing. As Sara Caplan said happily, “We
literally weren ’t all working on the same page until Bob Blasier and his computer got here.”

In early December, in an effort to adjust the composition of the jury and challenge alternate jury members not to their liking,
the prosecution had begun an unofficial investigation of certain members of the remaining jury panel. One of them was a man
who had worked for Hertz some years before. In a conference in Ito ’s chambers, Chris Darden quipped that this juror was about
to become very famous. He then gave us a draft of an article for
Star
magazine. It was about the juror being a former Hertz employee, his presumed sympathy for O.J., and the degree to which that
compromised his being on this jury. Glancing quickly through the article, I saw a reference to the reporter being scheduled
to “meet with an investigator from the district attorney ’s office for further comments on Monday.”

When I pointed this out to Judge Ito, he became quite angry. Questions or problems involving jury members were to be reported
directly to him, and any investigating was to be performed only by the sheriff ’s deputies, on Ito ’s orders. Nothing was
to go to the press, and no investigations were to be conducted by the D.A. ’s office.

“We ’ve had no choice, Your Honor,” Marcia Clark argued. “When these matters come to our attention, we have a duty to investigate
them.”

“No, you don ’t, Miss Clark,” cautioned the judge. When she tried to continue, he stopped her. “There are to be no independent
investigations by the prosecution of these jurors,” he said. “If you have problems, those problems are to come to me.

We had originally opposed the prosecution ’s motion for jury sequestration, feeling that it would work against us. But now
I began to reconsider the wisdom of
not
having the jury sequestered. Maybe it would be better all around if they were not only out of the media mainstream but out
of the prosecution ’s line
of fire as well. Our subsequent motion for sequestration read, “One need only look to the Faye Resnick book as well as the
media blitz currently underway by Nicole Brown Simpson ’s family members and representatives to provide additional justification
to sequester the jury now rather than later.”

A few days later, someone faxed a copy of a piece by newspaper gossip columnist Liz Smith, in which I was said to have had
dinner with Tony Frost, a reporter from the
Star.
Smith wrote that Frost and I met at La Veranda restaurant, and at the end of the evening Frost gave me a bottle of champagne.
The following day, she said, the transcript of O.J. ’s initial statement to the police, which to date hadn ’t been revealed,
was published in the
Star.

The transcript, and the original tapes of that interview, had been in a safe in my office for months, under double signature.
Just after Thanksgiving, O.J. had requested to hear the tapes. Pat McKenna signed them out, took them to O.J. in the jail,
and then returned them to the office safe.

I couldn ’t waste my time or anyone else ’s tracking down the source every time my name showed up in a bad light in a gossip
column, but this leak was more disturbing than gossip. Where, I wondered, did the
Star
get that transcript?

A
fter weeks of discussion with our DNA experts, the defense team decided to waive the Kelly-Frye hearing on the admissibility
of DNA evidence. Fighting item by item could ’ve taken anywhere from two to three months. We had neither the time nor the
money to expend on additional expert witnesses.

Besides, I had always believed that no matter what we did, Judge Ito would ultimately admit all the results of the DNA testing.
As a former prosecutor, he ’d hardly been shy in revealing pro-prosecution leanings in some of his early rulings. Furthermore,
we knew he had consulted with his colleague, Judge Dino Fulgoni, who was an open proponent of DNA evidence and one of the
district attorney ’s top DNA experts before he went to the bench. We were just going to have to deal with the evidence and
argue not its admissibility but its reliability and credibility.