The Search for Justice (14 page)

On Sunday, June 26, the weekend between the grand jury and the preliminary hearings, I called a last-minute summit meeting
of friends and colleagues in my legal community who specialized
in strategy, trial law, and appellate law. These were lawyers whose reputations were excellent, whose peer group held them
in the highest esteem, and whose advice and counsel I greatly valued. They willingly came, with very little notice and no
compensation, knowing that this wasn ’t an “audition” for a position on the defense team but a brainstorming session for my
benefit—and, by extension, for my client ’s. Forty were invited; thirty-nine attended. Only Barry Tarlow, a gifted trial and
appellate lawyer, was missing—because he mistakenly did not get the message.

The group included my associates Sara Caplan and Karen Filipi; Don Ré, one of the lawyers instrumental in the DeLorean case;
Mona Soo Hoo, who had worked with Ré and prepared all the DeLorean motions; Alvin Michaelson and Janet Levine, two estimable
trial lawyers; Marshall Grossman, a civil trial lawyer; Larry Feldman, a personal-injury specialist who had successfully represented
the young boy who accused Michael Jackson of molestation; Michael Nasatir and Richard Hirsch, college classmates of mine and
former federal prosecutors; Jay Jaffe, a USC graduate and authority on criminal law, as well as an expert in capital punishment;
Dennis Fischer and Charles Lindner, the appellate specialists we would later bring in to help us with writs on motions that
had been denied by Judge Lance Ito; Tony Glassman, a First Amendment specialist; Terry Christensen and Patty Glaser, superb
trial lawyers who were later to become my partners; Richard Sherman, a trial lawyer who had been Gerry Spence ’s protégé;
and Roger Cossack, a former U.S. attorney and now host of CNN ’s
Burden of Proof
.

All through that day, this summit made a 360-degree examination of every aspect of the case any of us could imagine. We made
lists, invented hypotheticals, shared opinions, experiences, and lists of potential expert witnesses. We compared notes on
jury consultants: Who had everyone used? Of those, which ones had been effective? Which ones had been less so? What kind of
courtroom style and expertise would be required at the
trial, and what kind of technology? We talked about graphic artists and the preparation of demonstrative evidence, such as
computerized graphics of timelines and charts of medical evidence. What lawyers should possibly be at the defense table with
me? Who would be more effective working in the background?

With Marcia Clark representing the prosecution, I felt strongly that a woman as defense co-counsel would strengthen the case.
I ’ve always enjoyed working with women lawyers, and have worked with some brilliant ones. Call it instinct, women ’s intuition,
the ability to relate to female jurors—I ’ve found all these qualities to be advantageous.

In addition, since the D.A. had chosen to prosecute the case in downtown Los Angeles, we knew that a mixed-race jury was a
given. And although African Americans make up a relatively small percentage of the voter registration, when it comes to jury
service, the downtown panels generally include a higher proportion of black jurors. Bringing in an African-American woman
lawyer might serve to psychologically balance the fact that O.J. had been married to a white woman. It might also give me
greater insight into the thinking of African-American women jurors, and women in general, on the allegations of past spouse
abuse, which the district attorney was clearly going to use to establish motive. But would it be perceived positively or would
it simply look like tokenism? Would it put undue emphasis on race as a factor in the case, or would it provide a common-sense
depth and balance that we might otherwise be lacking?

From ten o ’clock that morning into the evening, we wrestled with these questions and many more besides. When the session
was over, I came away with a legal pad full of notes, names, phone numbers, legal citations, and precedents, as well as a
defense strategy that I believed would be unbeatable.

The preliminary hearing, which was to last six days, began on Thursday, June 30, with Judge Kennedy-Powell presiding. Bob
Kardashian, Skip Taft, Gerry Uelmen, Sara Caplan, and Karen Filipi accompanied me to court; Marcia Clark was now joined at
the table by her boss in the D.A. ’s office, Bill Hodgman. David Conn, the original co-lead prosecutor, had been taken off
the case when his statement regarding the release of the 911 tapes contradicted that of Chief Willie Williams.

Later there would be some press speculation that Clark had been paired with Hodgman because he was gentlemanly and fatherly
with witnesses and might “soften” her image. But Hodgman was hardly window dressing; in his distinguished career, he had prosecuted
over forty murder cases, and he most recently had won the conviction of savings-and-loan magnate Charles Keating. Lance Ito
had been the presiding judge in the Keating case. I knew that Bill Hodgman ’s gentlemanly demeanor blunted neither his intelligence
nor his intention to fight this case down to the wire.

During the six-day preliminary, twenty-one witnesses would testify. Marcia Clark and I spent the morning of the first day
splitting hairs. At first they were literal ones. She wanted one hundred hairs removed from O.J. ’s head for forensic testing,
in order to compare them to hairs found inside a navy-blue watch cap seized by police at Bundy. I countered that Dr. Lee had
advised us that three hairs would be sufficient. Judge Kennedy-Powell ultimately ruled that the prosecution could have up
to one hundred.

It was during my cross-examination of Michelle Kestler, the assistant director of the L.A.P.D. crime lab, that the question
first came up of splitting or sharing forensic evidence for DNA testing. What had been tested so far? What remained to be
tested? Would there be enough left, after the prosecution ’s tests had been done, for the defense to run its own DNA tests?
As I proceeded to question Kestler item by item—there were sixty—Marcia Clark began her pattern of objections. Some were sustained,
some overruled, but the net effect was to establish in a very real way the adversarial nature of our relationship in that
courtroom.

Clark: “This is going to take all day in the manner in which counsel is proceeding.”

Shapiro: “Your Honor, with all due respect, I am representing a man who is charged with two counts of first-degree murder
and may be facing the death penalty.”

Clark: “I ’m trying to assist counsel in being more efficient and more effective.”

Shapiro: “We certainly appreciate that…. If we don ’t have any further interruptions or suggestions as to how we should present
our case, perhaps we can finish this.”

Two witnesses at the preliminary hearing were called regarding the murder weapon—or rather, speculation about the weapon,
which had not been found. The police had been contacted by Allen Wattenberg, the owner of a cutlery store in downtown Los
Angeles, who told them that O.J. had come in about six weeks before the murders and purchased a large stiletto knife from
a store clerk, Jose Camacho. Upon hearing this, detectives Lange and Vannatter went to the store, purchased a similar knife,
and brought it to the coroner for comparison with the sizes of the wounds, at which point, it seems, they all concluded that
the knife O.J. had purchased had been the murder weapon.

During his testimony, Camacho revealed that he ’d been paid $12,500 by the
National Enquirer
for his story. (The TV tabloid show
Hard Copy
had only offered him “peanuts,” Camacho said.) The appearance of seeking notoriety can impeach a witness ’s credibility—that
is, make it look like he has his own agenda for testifying. Although he should have been told by the prosecutor ’s office
not to discuss anything with reporters, he testified that when he asked someone who was in charge of witnesses in the D.A.
’s office if he could talk to the tabloids, she told him that talking to the press was up to him. This wouldn ’t be our last
experience with potential witnesses jumping on the cash-for-trash bandwagon. When payments are made for information that becomes
testimony, questions are raised
not just about a witness ’s credibility but about his agenda or possible bias. Some people will say anything for money.

The actual knife that O.J. bought was found exactly where we believed it would be. In his master bedroom, there is a dressing
table with a three-panel mirror on top of it. The side panels open, revealing storage areas. That ’s where he had put the
knife—which was in fact the smaller of the two versions the store clerk had described. And it had never been used at all,
for anything. We filed a motion to have a Special Master appointed to go retrieve the knife from its location.

“Special Master” is a term used to describe a lawyer or judge appointed to supervise a sensitive search warrant; for example,
one for an attorney ’s office, where the police might come upon confidential information that is either irrelevant or beyond
the scope of the search at hand. A Special Master is independent of the court and the prosecutor-police, and sworn to ignore
items not related specifically to the warrant. If there ’s a dispute or question about an item, the Special Master brings
it back for a hearing with an outside judge, so there won ’t be any chance of tainting the evidence.

We were not obligated to turn over or notify the prosecution and court of evidence that was exculpatory—that is, favorable
to the defense—which the pristine knife certainly was. But my thinking was that had we waited until the trial (which at that
point looked like it would occur in August 0f 199, but would in reality not begin until January 1995, and then argued that
this knife had been seized by Mr. Simpson ’s lawyers and kept since June 0f 1994, it would put the lawyers ’ credibility in
question and raise a great deal of suspicion as well. Why, the question would be, did the defense hide that until now?

Gerry Uelmen and I met with Judge Ito in his chambers and asked him in his administrative role to appoint a Special Master
to retrieve the knife and turn it over to the court for safekeeping. Ito then contacted retired judge Delbert Wong, explained
the situation to him, and asked him to serve as Special Master. Wong agreed, and the next morning, accompanied by Bob Kardashian,
he went to Rockingham, took copious notes, and removed the knife from its hiding place. The knife was returned in a manila
envelope, under seal, to Ito. It was our intention that it remain in the custody of the court until and unless it was needed
in the trial itself.

In a particularly dramatic moment at the preliminary hearing, I took a risk and broke my own rule of never asking a question
I didn ’t know the answer to. We wanted to establish that the knife O.J. had purchased had been put in a safe storage place
and never removed, by O.J. or anyone else. I asked the searching officer if he or the others had thought to look in the mirrored
cabinet. When he answered that he had not, I looked at O.J. with relief.

The “mystery envelope” containing the knife took on a disproportionate importance when Judge Mills walked into the courtroom
with it and called Judge Kennedy-Powell off the bench (in front of the TV cameras). She returned to the bench with the envelope
and announced that she was going to open it. I immediately objected. Judge Kennedy-Powell ruled that the envelope would stay
sealed until defense and prosecution had time to submit briefs on why—or why not—the envelope and its contents should become
evidence.

It turned out that immediately after Judge Ito had taken the envelope under seal, he went out of town on a planned long weekend.
When Judge Cecil Mills heard about the envelope, he had a different opinion about our use of the Special Master and whether
evidence like this should be withheld from the prosecution. So he gave it to Kennedy-Powell with the idea that once the prosecution
became aware of it, they would insist that it be entered into evidence.

While speculation mounted that the envelope contained the actual knife that O.J. had purchased, the prosecution never again
talked about it, its purchase, or their theory that it had been the murder weapon. It wasn ’t. Dr. Lee ’s forensic tests revealed
that the knife had never been used by anyone for any
purpose, and it was in the exact same condition it had been in when purchased.