The Search for Justice (30 page)

At first, O.J. was in an upbeat mood, positive and energetic, ready to go forward. While all eyes were on him, however, his
were on Ito, as the judge stood at the podium and made his opening remarks, explaining that he needed the help of everyone
in the room to find a jury. When he announced that the trial would go through at least to February 1995, everyone heard O.J.
moan, “Oh, God, no. My kids, my kids.”

Judge Ito explained to the potential jurors that he had good news and bad news. The bad news was that the jury questionnaire
that the defense and prosecution had ultimately agreed upon was 79 pages long. There were 294 questions, 12 alone having to
do with potential jury members ’ comprehension of the science of DNA. The good news was that the original proposal had been
125 pages long. The selection process, he warned them, would be painstaking, and it might take some time. Ultimately, it would
take five weeks.

During the voir dire process, we were seated at a small conference table. I was eye-to-eye with Marcia, which wasn ’t particularly
enjoyable for either of us. O.J. was at one end of the table, and Ito was at the other. Cochran was next to me and JoEllan
next to the judge. Each prospective juror would come in and sit down, directly across and six feet away from an accused murderer.
Both sides continued to say, of course, that they wanted a fair and impartial jury. In actuality, one side wanted a convicting
jury, the other an acquitting jury.

When jury selection finally began, Judge Ito had ruled that if jury consultants were going to be used, they had to sit in
front of the bar, not in the audience of observers. So Jo-Ellan
Dimitrius and her colleagues sat at the table with us, and we introduced them to the potential jurors.

The prosecution, however, seemed to take a different tack; only Marcia Clark and Bill Hodgman sat at the prosecution table,
as though to convey to the jury pool, “We ’re just the poor underdogs sitting here representing the People, up against the
army of the big-bucks defense.”

But I knew very well that their jury consultant, Don Vinson, was sitting in the back of the courtroom. As I began to question
the prospective jurors, I pointed Vinson out to Judge Ito. “Your Honor, can you have that person identify himself, please?”
I asked. “I don ’t believe he ’s a juror.” The main focus of my objection to where he was sitting was that it was next to
potential jurors. An abashed Vinson identified himself. After that day ’s recess, he was gone. Clark and Hodgman evidently
preferred their instincts over his expertise, in spite of his advice to downplay the importance of domestic abuse as a precursor
to murder.

Frustrated and often angered at the ongoing publicity about the case, which neither he nor anyone else could censor or control,
Judge Ito had basically excluded from the jury any candidates who regularly read newspapers, magazines, or watched television
news. “Both sides lost some good people in the process,” Jo-Ellan said.

“I ’m not looking for hermits,” Judge Ito told the prospective jurors. “The issue is, can you set aside whatever you heard?
Can you put aside your impressions and opinions and judge this case solely on the evidence presented in court?” Although those
questions are posed to every jury, we were all aware that this jury would face a number of challenges unique to this case
and this defendant.

Although there was a sense of drama and ritual surrounding this first day, the day itself was fairly uneventful. The first
round of eliminations from the panel was for “hardship,” which described jurors who, on the one-page questionnaire from the
court, said that under no condition could they be available for
a trial that would run at least through February. One man in particular put on quite a show. “I ’m just too stressed to do
this,” he claimed, although he looked to be in as good a shape as most of the panel, if not better. His brother had suffered
a heart attack, he said, and his mother had died of one. If we made him serve on the jury, what would we do if he had a heart
attack and died during deliberations? The speech was creative, and effective. We excused him.

One of the challenges of picking a jury is finding people who are not only honest but honest with themselves as well— that
is, honest about their feelings. In a voir dire setting, with the solemn rituals of trials and courts all around, it ’s awkward
for a prospective juror to say he cannot be fair, cannot be impartial. In many ways, it ’s almost a trick question. I phrase
it somewhat differently by putting jurors in the defendant ’s position, by trying to get them to understand how they would
feel in that same position. What qualities of deliberation would they hope to find in a jury judging
them
?

Bill Hodgman and Marcia Clark had filed a motion requesting a continuous hearing, asking that once the hardship cases in the
prospective jurors were identified, the trial be continued— that is, delayed—until their DNA testing was complete. They had
ten more items to be sent to Cellmark. I thought it was ironic that the evidence they were seeking to test had been discovered
months ago. They wanted to complete the hardship portion, then go to the DNA hearings, then return to final jury selection.
The defense argued against the motion. Now that selection had finally begun, we didn ’t want any further interruptions, and
neither did the judge. “I want to get this jury selected,” said Ito.

That first day, Johnnie and I left together, walking out through the same chaos. Every reporter had a question, shouting out
comments, introducing themselves, throwing their microphones out in front of them so that if we made any remarks, they could
later edit tape to make it look like they had interviews with us. We said nothing.

I dropped Johnnie off at his office and went back to my own, where I had an appointment with Skip Taft to talk about the money
situation. The preliminary figures for the trial alone were overwhelming. The clock had now been running for five months,
and we still didn ’t know for sure when the trial would begin, let alone end.

The tab for the three investigators, who were paid a specified weekly rate plus living expenses, was one concern. Their fees
had been negotiated by Skip, and there was no question that the crew had been working diligently seven days a week, around
the clock, but we had to do something to cut costs. John McNally indicated that he would be willing to leave the case and
would go back east within a month. Pat McKenna said he would take a cut in pay but wanted to stay on. In the meantime, we
agreed to find a two-bedroom apartment and get them out of more expensive hotel rooms.

I then called Alan Dershowitz, whose hourly rate was accumulating steadily. I wanted him and his brother Nathan to stay with
the case. Alan had been key to strategy since the beginning, and in terms of motions he was a creative master. He pledged
to reduce his fee in the event of having to prepare an appeal. “I don ’t even want to talk about appeals now, Alan,” I said.
“We ’re not going to see a conviction in this case.” He agreed to stay on, with a flat fee that was agreeable to Skip.

Scheck and Neufeld were another problem entirely. For the preliminary hearing and pretrial motions, they ’d been working for
a flat fee. We needed them for the trial, but they were anticipating a three-week Kelly-Frye hearing plus three weeks preparation
for it, which would ’ve been a tremendous added expense. Skip was frustrated, saying that he sometimes felt like he was watching
O.J. ’s money drain through a sieve. “We just can ’t do this,” he told me. “We ’ve got to find ways to cut the money or cut
the time.”

I told him we ’d do what we could, but Scheck and Neufeld were essential. We hadn ’t even begun the trial; it was no time
to cut down on lawyers or experts. We did, however, begin to reconsider the Kelly-Frye.

The second day of jury selection, O.J. ’s mood was down again. He had had a very sad conversation with Bobby Chandler. They
had talked about their children: Bobby had three of his own, and O.J. ’s daughter, Sydney, would be celebrating her birthday
in a few days. Chandler had tried to impress upon O.J. the power of prayer. Although he himself was not afraid to die, O.J.
was grieving for the pain his friend was going through. In one hushed, surreal moment in court, he unexpectedly sang a few
chords of “Memory” from
Cats
, and the reporters, of course, took down every note.

Rather than returning to the holding cell over the lunch break, O.J. was allowed to stay at the table with us. During the
breaks, he and I learned to play solitaire on the computer, although we both had some initial trouble moving the mouse around.
When he ’d win, his mood would brighten up a little, and then he ’d remember where he was.

In the wake of the KNBC report about blood tests on the socks, the court ’s concern about news leaks became increasingly apparent.
Ito showed us an article from
Newsday
that reported that blood on the floorboard of the Bronco had been DNA tested and identified as Nicole ’s. Neither Scheck
nor Neufeld knew anything about this. Ito reacted angrily to
The Daily Journal
(a law newspaper) for publishing the jury questionnaire before he had released it, and temporarily took away the paper ’s
seat in the courtroom. I was convinced that reporters weren ’t pulling their information out of thin air. Someone was feeding
it to them.

Ito told the attorneys he was seriously considering keeping television cameras out of the courtroom. At any rate, he wasn
’t going to decide one way or the other until the last possible moment, hoping that it would put some kind of pressure on
the media to moderate themselves and to take his threats seriously.
We filed a motion for the judge to take some kind of action to find the source of the news leaks, since their cumulative effects
seriously threatened the defendant ’s right to a fair trial. Johnnie argued very passionately that these problems in the press
began on day one, with the leak of the 911 tapes and Gil Garcetti talking about a Menendez defense.

The morning we were to file the motion on the news leaks, Clark was late to court. In chambers, I kidded Judge Ito: “I ’ve
got bad news. Marcia won ’t be here today, she ’s sick.” He looked at me with some surprise. I said, “She ’s recovering from
her personality transplant.”

In addition to following up on the news leaks, I queried Ito and Hodgman about the discovery order we ’d filed weeks before
for the logs and communications tapes from the L.A.P.D. The judge had signed that order, but the material still wasn ’t forthcoming,
and Bill Pavelic kept reminding me how important it was to see the detectives ’ reconstruction of their actions on that first
critical day.

“I don ’t want anything more or less than what we asked for and what you signed,” I told the judge.

Hodgman interrupted, saying that producing all that material would be difficult. I stopped him. “Your Honor,” I said to Ito,
“haven ’t you already ruled on this?”

He nodded. “Yes, I have, and we ’ll put this back into the record.”

I mentioned that we kept going back and forth on these issues of discovery. “I thought the procedure was that the proponent
argues, the respondent argues, and the proponent gets the last argument,” I said. “But on this case, we have surrebuttal,
sur-surrebuttal, sur-sur-surrebuttal, and super-surrebuttal. Then the judge rules. Then, if the ruling goes against the prosecution,
they present a motion for a new ruling.”

For Grant ’s birthday in September, we took fifteen kids to Raging Waters theme park. I was dressed in a hat, sunglasses,
and
loose jogging clothes. Linell bought the tickets, I stayed off to the side, but one of the ticket takers recognized me and
insisted that security be called. I spent the rest of the day sitting in a secluded back corner of the park, reading one of
Gerry Spence ’s books, while Linell ran shuttle between me and the kids.

At the end of the day, as we were gathering up everybody to leave, a security guard came running up, all wide-eyed and out
of breath. ABC had a news crew waiting just outside the front gate. So we all turned around and made a quick, discreet getaway
out through the back way.