The Search for Justice (33 page)

On November 3 we at last had our jury. Twelve citizens sworn in; fifteen alternates to be chosen the following week. The final
composition was better than we could have expected. Eight African-Americans, two Hispanics, one male Caucasian who was part
Native American, one young female Caucasian. None had prior jury experience, none seemed preconditioned
toward accepting DNA evidence. All seemed to have open minds. They, and we, had made it through a challenging five weeks.
Picking a jury is always the hardest part of a case, and at last, it was over. Johnnie and I joined hands and together we
announced, “The defense accepts the jury.”

November 7 was the date set for the courtroom hearing on cameras in the courtroom. The media had a field day, as lawyer after
lawyer got up and delivered eloquent lectures on the freedom of the press on behalf of newspapers and networks. When Ito took
the bench, he showed us his own demonstrative evidence: boxes stacked twelve feet high, full of the approximately fifteen
thousand letters the court had received asking that the cameras not be in the courtroom.

Overall, I felt that cameras should be allowed. I believed they would help O.J. On the plus side, I believed that the defense
team was more comfortable in front of a camera than the prosecutors. We thought that O.J. would do well with cameras, whether
on the stand or simply at the defense table. On balance, we believed that all our witnesses would stand up better to camera
scrutiny. The prosecution ’s key witnesses hadn ’t done particularly well with the cameras during the preliminary hearing,
especially Detective Vannatter and Dr. Golden. The cameras might also serve to keep Judge Ito operating down what I thought
of as the middle of the road, rather than leaning to the prosecutorial line, as most judges in my experience have tended to
do.

The downside, of course, is that cameras affect everyone in a courtroom, and people get self-conscious and then act differently—and
more unpredictably—than they otherwise might.

Floyd Abrams, the noted constitutional law expert who was commentating for Court TV, gave in my estimation the best reason
for cameras in the courtroom. Drawing the analogy to O.J. ’s plea, he said, “I represent the cameras, and to that I plead
one hundred percent not guilty. The cameras haven ’t caused
the problems.” The public should see what the jury sees, he argued. We, too, wanted cameras only for the evidence that the
jury would see. Any pretrial motions, evidentiary rulings, or arguments made at sidebars would not be filmed.

As was his policy, Ito courteously allowed everyone an opportunity to speak as long as they wanted. At the end of the day,
he announced his decision: The trial could be televised.

Soon after our jury was impaneled, I was astonished to see, in the
Los Angeles Times
, a full-page ad announcing that Judge Ito, “the most famous judge in America, is going to be welcomed into the homes of the
American people.” During the November network sweeps, Ito was going to be featured in a five-part interview with reporter
Tritia Toyota on KCBS, the local CBS channel. And KCBS was promoting it like it was the first moon landing.

Tritia Toyota ’s husband, Michael Yamaki, was a respected attorney and a man held in high regard in the Asian community, and
that ’s evidently how the first contact came about between Ito and Toyota. We later learned that there had only been one on-camera
interview, not five. Ito had no way of knowing that it would be divided into a series and shown every night for a week, let
alone be hyped by the television station in a manner that suggested that he was going to give inside information on the Simpson
trial and its participants. This, of course, was not the case. To Ito ’s credit, and to the reporter ’s, the only things that
they discussed were personal matters—his childhood and his family internment in the Japanese camps, and his interest in the
law.

Nevertheless, the whole matter put him in an unfortunate light. His detractors accused him of being on an ego trip, that it
was arrogance on his part, or self-aggrandizement; his supporters said that the interview not only gave the public a behind-thescenes
look at a judge and his role in the judicial system but also
an introduction to a respected Japanese-American in a position of great responsibility.

Regardless of how harmless it may ultimately have been to the case, I thought Ito ’s interview highly inappropriate not to
mention that the timing, coming right on top of the Resnick book, contributed to the media circus. However, I knew it would
be impolitic for me to begin a trial of this magnitude by criticizing the sitting judge.

As we began to head into the holiday season, it was clear that O.J. was more and more irritated at issues that appeared peripheral
to his trial, that seemed to draw attention away from the trial itself. He told anyone who would listen about his exasperation
when Ito did the television interview, worried that it would create more bad publicity for the case. At the counsel table,
he was easily overheard joining in on the gallows-humor jokes and sotto voce wisecracks that the attorneys exchanged among
themselves. He grew visibly restless and impatient when he thought the prosecution was dawdling over a voir dire of a prospective
alternate juror. When Ito told potential jurors that they would be sequestered for up to six months, and that opening statements
might not even take place until the end of January, O.J. audibly groaned in court.

One issue that needed to be resolved was the recurring question of Judge Ito ’s wife, Captain Margaret York. We had information
that she had at one time been Mark Fuhrman ’s supervisor when he was a patrolman in West Los Angeles, and had clashed with
him over his treatment of women police officers, and we raised the possibility of York being called as a witness—which in
turn raised a conflict-of-interest question for Ito.

Both the defense and prosecution thought it would be fairly easy to resolve this potentially embarrassing situation. We first
spoke informally with Captain York outside Judge Ito ’s chambers, and then in a conference with him inside his chambers we
suggested that his deciding the matter might give the appearance
of impropriety. We needed an open hearing, with an objective judge to hear our argument.

We went to Judge Mills and asked him to appoint someone. When he suggested Judge Steve Czuleger we reminded him that Czuleger
had participated in the grand jury, and we ’d prefer someone who hadn ’t worked on any of the Simpson matters. He said, “Fine,
Robert Perry, then.” Perry was a former U.S. attorney and was satisfactory to us.

“Your Honor, we don ’t know him,” argued Marcia Clark. “We don ’t want to deal with anyone we don ’t know.”

“Well, let ’s discuss this for a minute,” said Mills. “Who would you like?”

“Judge Curtis Rappe,” Clark answered promptly.

“Wait just a minute, Your Honor,” said Johnnie. “If she ’s going to suggest somebody, then I want to suggest somebody.” And
he mentioned a judge that he knew and was close to.

This is going nowhere, I thought. “Judge Mills, this is ridiculous. If we all pick and choose and then argue our favorites,
this will never get done. You ’re the presiding judge, you have lots of good judges to choose from. Why don ’t you just pick
one?”

Mills nodded. “That ’s exactly what I ’m going to do,” he said. “I ’m not going to be influenced by anyone. The matter goes
to Curtis Rappe.” The prosecution ’s choice.

After Mills appointed Judge Rappe, I spoke with York ’s attorney, who assured us that his client had only a dim recollection
of Fuhrman and hadn ’t experienced any difficulties with him. That clashed with what we were hearing from Robert Tourtelot,
Fuhrman ’s attorney, who alleged that they ’d had many disagreements, including at least one that led to a formal reprimand
in his file.

Rappe subpoenaed all the records and reviewed them. He announced that there was nothing beneficial to the defense in calling
Captain York in the case, and the matter was resolved.

Over the long Thanksgiving weekend, I visited O.J. twice, once on Thanksgiving Day itself, which, since he was away from his
family, was a very hard day for him. On the following Monday, Bill Pavelic and I spent four hours at the jail, going over
and over the now-familiar details with O.J. I suspected that if he took the stand he would be a typical witness—that is, not
as good as he thought he would be. I often tell clients that they must
learn
to be witnesses. They must take their time, listen to questions, and answer them simply. Testimony is definitely not social
discourse.

Over the course of the trial, Bill spent endless hours with O.J., keeping him informed and getting his input. During their
conversations he subtly encouraged O.J. to control his constant storytelling impulses. In the time they spent together, the
two men formed a bond of trust and true friendship. But that didn ’t mean O.J. didn ’t get as impatient with Bill as he did
with the rest of us.

One day, in complete exasperation, O.J. said, “Bill, I hope this doesn ’t perjure me, and I haven ’t really told anyone until
now, but I just remembered… somewhere, sometime that day, I spent some quality time in the head!”

Between Thanksgiving and Christmas, Nicole ’s sister Denise hired famed feminist attorney Gloria Allred as her representative,
and within days of doing so, it seemed that Denise was everywhere—on television, in the tabloids. To anyone who would listen,
she stated over and over again, quite emphatically, “O.J. Simpson murdered my sister.” Denise in the
Orange County Register:
“O.J. did it.” Denise on TV, on
Geraldo:
“He did it.” Denise on
Primetime Live
with Diane Sawyer: “He did it.” In effect, she launched a war of words, which the Brown and Goldman families very quickly
joined.

I believed that it was the defense ’s role to speak on behalf of O.J., and I knew that the prosecution was prepared to speak
passionately and eloquently on behalf of Ron Goldman and
Nicole. For this reason, I ’d hoped that their families wouldn ’t get caught in the judicial or media crossfire.