The Search for Justice (35 page)

Over the weekend of December 10 and 11, CNN ’s Art Harris reported the defense ’s decision to file a motion to waive the Kelly-Frye
hearing. Confirmation of this information had come, he reported, from two members of the defense team. I was completely surprised
when I heard this; we hadn ’t filed the motion to waive yet, nor had we told anyone about it.

“Damn
it, this place is like a sieve!” I said. “I just gave mybig
speech about not talking to the media, and here we are, meeting ourselves coming and going on TV before we ’ve even filed
the damn motion!”

Gerry Uelmen, who had prepared the motion, was angry at the news leak, as was everyone else. Strategically, it didn ’t harm
anything; psychologically, it had us all once again looking over our shoulders. And at each other.

On Monday, December 12, the jury was assembled and given cautionary instructions by Judge Ito as to what they were to do between
that date and January 4, when they were told to report back and be prepared for sequestration. There were a few more pretrial
matters to resolve—the admissibility of the prosecution ’s domestic abuse evidence and the material on Mark Fuhrman we wanted
to introduce—but once we ’d foregone the Kelly-Frye hearings, we knew that the trial would probably begin within a couple
of weeks after the Christmas break.

In mid-December, we did battle with the prosecution over Roosevelt Grier ’s visit to O.J. the month before.

The problems around our visiting arrangements and the visiting room had begun almost as soon as O.J. went to jail. Defendants
on bail can prepare their cases seven days a week, but of course that had not been an option for us. Because we were often
in court on pretrial matters during the week, it was difficult for us to meet with O.J. anytime except the weekends. But the
attorney room at the jail was closed from mid-Saturday until Monday morning.

Judge Ito made another area available to us, with the required sheriff ’s deputies, some soundproofing, and a phone system
so that O.J. could speak with a semblance of privacy, in spite of the glass wall between him and his visitor. During his visit
with Grier their conversation, and specifically O.J. ’s words, were overheard by a deputy. Even though neither side knew what
had been overheard, Grier assured us that it wasn ’t anything damaging. Still, we contended that because of Rosie ’s
status as a minister, the jail conversation was privileged; Marcia Clark argued that by raising his voice in the glass-walled
visiting room, O.J. forfeited his right to privacy, and whatever he ’d said would be admissible.

“If the parties choose to shout at each other, that ’s their problem,” said Ito, leading me to believe that he was going to
go along with Clark.

I exploded. “I think it ’s disingenuous for Your Honor to even make that suggestion. You assured us privacy with those phones!”
I said. The existence of telephones and the volume of an overwrought defendant ’s voice hardly qualified as reason to check
his constitutional rights at the jail door. Ito had approved the design of that room so that it would be private. O.J. had
every right to believe that whatever he said there was said in confidence.

Ito ’s eyes got very steely. “Take a deep breath, Mr. Shapiro,” he cautioned. “When you argue that the court is being disingenuous
in that question, I ’m a little concerned. I would ask you to sit back and think about that for a moment.”

Cochran and Uelmen took me aside and told me that Ito wanted an apology. “No,” I said angrily. “Ito personally assured us
that the room was designed to protect confidentiality. He can ’t rule against us just because Clark wants him to. The conversation
was privileged, I don ’t care how loud it got.”

My colleagues weren ’t any happier than I was, but it was clear that the next step was mine, and it had better be made diplomatically.
After the lunch recess, I came back and apologized to the judge. “It was something said in the heat of advocacy,” I said.

Later that week, Judge Ito ruled that, indeed, O.J. ’s conversation with Grier was privileged. “Counsel for Simpson were assured
that the proposed modifications would make a portion of the module secure,” he said.

The court would be dark for the two-week Christmas break. I had long planned to take Linell and the boys to Hawaii. Johnnie
was heading for New York and then on to South Africa for a long-planned trip. The New Yorkers were heading out, and Bailey
was going to Florida. Baden and Lee had been back East for months, getting ready for their trial testimony.

O.J. knew that some of us were going to be out of town until after New Year ’s; in fact, he had encouraged everybody to take
time off. We had been working almost nonstop for six months. With the trial coming up, it would be the last break we ’d get
for a while. He was trying to be fair; I knew he wasn ’t looking forward to his own “break” in jail. Even with his family
visiting, it would be a very, very quiet two weeks, and we were all painfully aware of that.

As the time to leave grew closer, I became uneasy. I wasn ’t sure if it was discomfort at the idea of O.J. in jail over Christmas
or guilt at time with my family that I suspected might be cut short. Maybe it was knowing that when we came back, we ’d finally
go to trial. Whatever, I fully intended to work in Hawaii. I was taking a stack of files, along with DNA reading material,
and I ’d made arrangements for two private telephone lines and a fax line to be installed in our suite. Anyone who wanted
or needed to reach me would be able to do so.

On Sunday and Monday, before I left, I spent as much time as I could at the jail with O.J. We went over the same ground again
and again, and I reassured him that the case had been fully researched and prepared, that we were ready. O.J. was working
to stay optimistic, to stay focused and energetic. Much of the material in my office—witness statements, the murder book,
crime-scene photos, much of what we ’d received in discovery—was being packed up to be shipped to Florida so that McKenna
and McNally could go over everything again on the break. When we all returned, we would be rested and prepared for the trial
to begin.

A few weeks before, I ’d called Mike Ovitz to get some personal advice, telling him how difficult it had been to hang on to
my private life. “I ’m really getting battered in the press. Any suggestions as to what I can do?”

“You ’re really out on a limb,” he said. “I really don ’t know
what to tell you in this situation. I know how awful it is, what ’s happening to Linell and the kids. You ’ve got to pay close
attention to them. When you travel, travel under an assumed name.”

So that ’s what I did, using the name Tony DiMilo, a singer who ’d been in my father ’s band. United Airlines and the Grand
Wailea Resort on Maui were both in on it and saw to it that our real names never went into any computer. Once on the plane,
Linell and I were in first class and the boys were in coach directly behind us. I worked all the way to Maui, feeling only
slightly foolish when the flight crew, who obviously knew who we were, asked Linell if “Mr. DiMilo” wanted any more club soda.

Once settled in at the hotel, I left it on two occasions to go out to dinner. Otherwise, we ate all our meals in the hotel
restaurants, and I spent much of each day in our suite, reading DNA texts and drafting a twenty-six-page outline of what would
become the foundation for Johnnie Cochran ’s opening statement. Linell and the boys hit the beach or the pools, and I ’d join
them around three in the afternoon, bringing my homework with me. After reading in the sun for about an hour, I ’d head back
to the room and deal with the phones and faxes, then to the health club for a workout. In the evenings, we all had dinner
together. Then I ’d exchange faxes with Barry Scheck, who was in Mexico, on DNA strategy.

On the twenty-third, I received a memo from Lee Bailey regarding tactics for the trial opening. When we talked about it on
the phone, he was somewhat rambling and repetitious. It was six hours later where he was; clearly he ’d enjoyed a few cocktails.
When he mentioned that he was planning on being at the trial for the duration—around four months, he guessed—I said, “Lee,
what are you talking about? There are only three seats at the counsel table. I haven ’t received any clearance whatsoever
for you to be there.”

“Oh, yeah?” he said. “Well, have you talked to your client lately?”

“Not specifically about this,” I answered. “Besides, Skip
Taft is really watching the money, there ’s no way he ’d pick up the tab for you to be at the table.”

“Well, you ’re wrong,” he said. “I ’ve rented a condo on Wilshire Blvd. I ’ll be there for the trial. And I ’ll be at the
table. Why the hell do you think I ’ve been coming to all these meetings?”

This was getting murkier by the minute. “Because you ’re a consultant on the case, because you wanted to be involved with
what ’s going on. Harris is your computer guy, McKenna and McNally your investigators. But Lee, you ’re a consultant to the
team, you ’re not one of the trial lawyers.”

The conversation went downhill from there. Bailey wanted to know why he wasn ’t included in my fee agreement with O.J. and
why, if he wasn ’t one of the trial lawyers, his name was on some of the pleadings. (Because I thought it would help out your
career, I wanted to say.) The phone conversation ended badly.

When I told Linell about it afterward, she said, “This is getting sad. You guys have known each other too long for this to
happen, you have to clear it up.” So I called him the next morning. “Look, Lee, I feel awful about this,” I said. “If O.J.
wants you at the table, then of course I do, too.”

Later that afternoon there was a conference call, with Lee, Johnnie Cochran, Barry Scheck, Dershowitz in Boston, and Gerry
Uelmen. F. Lee Bailey was now officially at the table. “Welcome, Lee,” boomed Johnnie. “Thanks, Johnnie,” answered Lee.

At the end of the conversation, Johnnie closed by saying, “Oh, by the way, Bob, we ’re having a meeting in my office on the
twenty-seventh.”

“What? You said you were going to South Africa!” I said.

“Nope, not going to South Africa,” he answered. “I ’m staying here. There ’s too much work to do. Plus we ’re having this
meeting.”

“Why didn ’t somebody tell me about it?” I asked. “You knew I ’d be here until after New Year ’s.”

“Well, we ’ve just gotta move on, Bob,” he said. “We ’ve gotta do what we ’ve gotta do.”

“Fine,” I said evenly. “I ’ll be back in time for the meeting.”

“No, no,” he said quickly, “don ’t cut your trip short. You don ’t have to be here. It ’s really just my staff.”

I then received a fax from Carl Douglas stating that Skip Taft was very concerned that costs had gotten out of hand. All future
meetings would be held in Johnnie Cochran ’s office and all future travel arrangements would be made through Cochran ’s secretary.
From now on, our out-of-town experts would be moved to a hotel that was fifteen dollars cheaper a night than what we ’d been
paying, and in-town travel would be done by taxicab.

The faxes really started flying. I said I ’d pay the extra money to keep Baden and Lee in the Marriott near my office, which
had always given me terrific discounts. I ’d pay out of my own pocket, and I ’d also pay for the Lincoln Town Cars to get
them back and forth. I wasn ’t about to have either man flagging down a cab with an armload of papers and files, trying to
get downtown to the courthouse to give costly expert testimony.
That
would have been a waste of time and money.

Then Bill Pavelic called me to report a phone call he ’d received from John McNally on Christmas Day. “Hey, Bill,” McNally
had asked him, “what ’re you going to do once Shapiro ’s bumped from the case?”

Pavelic was alarmed. “Bob, you know the files that left your office? They didn ’t go to Florida,” he said. “Everything went
to Cochran ’s office.”

Linell had been monitoring the goings-on with a growing concern. “Bob, something weird is going on here. What are they doing
to you?”