The Search for Justice (27 page)

We had also been waiting on the prosecution ’s decision on whether or not to seek the death penalty. I believed that they
would not. The defense had prepared a letter to go on record in the D.A. ’s office, basically to the effect that since our
client was innocent, we would take no position nor make any recommendation regarding his sentencing.

This was a major strategic decision. A death penalty trial
would require a special voir dire on what ’s called a “death qualified jury,” that is, a jury who could vote to impose a death
sentence. This type of jury is obviously pro-prosecution; anti–death penalty jurors are excluded. However, in the guilt phase
of a trial, a death penalty jury generally requires a higher standard of proof—which would favor the defense.

On September 9, the district attorney ’s office announced that the People were not going to seek the death penalty but would
instead ask for life without parole. I wasn ’t surprised. No matter how solid the prosecution believed their case to be, I
couldn ’t envision a scenario in which either Bill Hodgman or Marcia Clark would stand in front of a jury and ask them to
return a verdict that would send O.J. Simpson to death row.

In September, we heard that the prosecutors had conducted a weekend-long mock trial in Phoenix, Arizona. Using their jury
consultants and presenting the evidence they had to date, they selected seventeen local citizens as the jury. The mock jurors
liked Bill Hodgman; they were less enthusiastic about Marcia Clark, claiming that her courtroom style was too aggressive.
For my part, I felt that her style and obvious personal antagonism toward me would be favorable to us and off-putting to the
jury, and I did what I could to elicit those responses from her at every opportunity. While she openly flirted with Johnnie
during much of the trial, my presence almost always kicked off a hostile reaction.

The Arizona mock jurors were, however, quite clear about their verdict. As one “juror” told a local reporter, “The prosecution
asked if there was just circumstantial evidence, DNA and this and that, could you find him guilty?” Evidently the jury ’s
answer was no: They found O.J. not guilty.

We also heard that the prosecution wasn ’t going to put Dr. Irwin Golden back on the stand again for the trial. Reportedly,
they had been looking for a medical examiner to testify as an
expert witness in order to counter Golden ’s performance under my cross-examination in the preliminary. One candidate, Dr.
Boyd Stephens, the president-elect of the National Association of Medical Examiners, turned them down, as did others. Ultimately
the prosecution would use Dr. Lakshmanan.

There was a lot of discussion about why the district attorney was going to try this case in downtown Los Angeles rather than
in Santa Monica, which would have been the natural venue. The explanations were many and varied. One possibility was the need
for both a high-security courtroom and extensive news facility.

A second possibility was that in the wake of the racial tension that was created by the Rodney King verdict and escalated
during preparations for this trial, it might have been a political move on Gil Garcetti ’s part to try O.J. in an area where
the jury pool would include more African-Americans than did Santa Monica.

My own thought was that Garcetti wanted close personal control over the case, and instant access to the press—which was permanently
located right next door to his office.

Technically, the trial could have taken place anywhere in Los Angeles County, and we were prepared to present the defense
’s case in any courtroom Garcetti wanted, but we were pleased that it would be a downtown courtroom and a downtown jury. I
heard from an old friend in the district attorney ’s office that there was great resentment there at the tremendous personnel
and resources being devoted to this one case. “D.A.s are complaining that they can ’t get simple investigations done on other
cases,” she said. “Everything but Simpson comes in very low on the priority list.”

Right after the Labor Day weekend, the prosecution filed a motion requesting that once the jury was selected, Judge Ito should
sequester it. Initially, the defense didn ’t think that sequestration
was a good idea, primarily because it presents significant hardship, especially to people who need the income from working
at least part of every day, and thereby narrows the jury pool. Jo-Ellan Dimitrius also advised that sequestration can make
some jurors become bonded with the bailiffs who care for their every need. Understandably, bonding with law enforcement creates
a pro-prosecution jury. We also didn ’t think sequestration was necessary because we believed the jurors would follow the
judge ’s instructions to not be swayed by outside influences. Put simply, we trusted them. Just before the trial began, however,
events would persuade us to agree with the prosecution, and the jury was ultimately sequestered.

As we prepared for the trial, we knew we had to confront the existence of the 911 tapes and the issue of spousal abuse, and
be prepared to argue that such abuse does not automatically lead to murder. Our own surveys showed that 99 percent of the
people polled had heard the tapes; of those, a majority believed that they were an accurate reflection of Nicole and O.J.
’s relationship. Trying to get the tapes excluded would be a pretty futile move at this point.

There was no point in hiding it—after all, O.J. had pleaded no contest to the charges. They ’d fought after coming home from
a party, where they ’d each had a great deal to drink. Nicole admitted later that she went after O.J. first, throwing things
at him, accusing him of being with other women. He overreacted, he blew up, and he wrestled her, which was wrong, and he admitted
it. And he went to counseling because of it. He also readily admitted to yelling at Nicole and kicking at the door in 1993,
He wasn ’t proud of any of it. They had fights, they had battles. They broke up, they got back together, they broke up. After
the 1993 reconciliation—initiated by Nicole—didn ’t work out, O.J. was resigned to their marriage being over, and he resumed
his relationship with Paula. If he were truly a man out of control, he would ’ve gone over the top with Keith Zlomsowitch,
or the rumors about Marcus Allen. And he didn ’t.

In mid-September, we observed Yom Kippur, the Day of Atonement, the most solemn of Jewish high holy days. Accompanied by my
parents, Linell and I attended services at Stephen Weiss Temple, a magnificent sanctuary high atop Mulholland, overlooking
the San Fernando Valley.

A reform temple, where the prayers are translated from Hebrew into English, Stephen Weiss has one of the largest Jewish congregations
in the United States. Because of this, simultaneous services are held at six different venues on the temple grounds.

We first had occasion to meet with the chief rabbi, Rabbi Isaiah Zeldin, when Brent applied to Stephen Weiss—Michael Milken
Community High School, which is affiliated with the temple. I had found Rabbi Zeldin to be a warm, compassionate man, equally
adept and wise discussing temporal matters as well as spiritual ones. Quite often, when helping children apply for admission
to a private school, parents find themselves answering a variation of the question of what the child can do for the school.
Here, we had experienced the reverse: The people at Stephen Weiss were always concerned about what they could do for Brent,
and for us as a family. I was surprised to find myself feeling quite emotional about being part of such a place, and great
pride at being a Jew.

However, I hadn ’t been attending temple regularly, and on this particular night I expected to feel only the usual dutiful
responses. I was tired, achy, anxious. Was I getting the flu? I ’d been restless at night, waking up and thinking of things
to talk to Johnnie about, questions I had for the investigators, procedural questions for Uelmen, science questions for Scheck
and Neufeld. We ’d started out ahead of the prosecution; had they gone past us?

As the Yom Kippur services went on, I found that the rich voices of the rabbis and cantors singing the ancient prayers were
deeply moving to me. When services were over, I came away grateful for the opportunity to have a brief time of spiritual
contemplation in the midst of what was distinctly unspiritual turmoil.

Johnnie Cochran had established himself as a leading criminal defense lawyer when he was asked by then—District Attorney John
Van de Camp to be an assistant district attorney in the late seventies. It was the first time in the history of the office
that a criminal defense lawyer had been appointed to that position.

Cochran was a visible presence as a prosecutor and took a lead role in investigations of police shootings. Upon leaving the
D.A. ’s office, he reestablished his private practice, concentrating primarily on civil cases in which he represented civilians
against the police department and, in more recent years, entertainment figures involved in criminal cases. Cochran ’s entire
practice is staffed by African-Americans, and he is justifiably proud of the reputation the firm has established over the
years. Most of his career has been in the downtown Los Angeles courthouse, and he viewed himself, quite correctly, as an expert
with downtown juries. He carries himself well, with both dignity and energy, and has a unique ability to vigorously represent
his clients and at the same time maintain good relations with prosecutors, police, and government officials alike. This is
a quality and attitude I pride myself on, and I welcomed it in Johnnie.

From the beginning, I liked his intuitive understanding of people. A consummate politician, he prided himself on being able
to get along with everyone. He is especially good at speaking on his feet; he ’s completely extemporaneous, even in trial,
and eloquent on the issues he ’s most passionate about. In private, I rarely saw him show anger, and when negative things
were said about him, he shrugged the comments off as unimportant. When the
Los Angeles Times
published a particularly unflattering article, Johnnie simply ignored the story. I respected his ability to know when to
be tough and when to tone things down, both in and out of court. We made frequent jokes
at each other ’s expense—I chided him about his unduly loud neckties, he kidded me about my diminishing hairline.