The Run of His Life: The People v. O. J. Simpson

10. GROUP THERAPY

At first, Cochran made a seamless transition onto the defense team. At the arraignment on Friday, July 22-when Simpson said he was “absolutely, 100 percent not guilty”-Judge Cecil Mills announced that he had assigned the case for trial to Judge Lance A. Ito, of the superior court. Because Ito’s wife, Margaret York, served as a captain in the LAPD, Mills gave the defense the opportunity to have Ito removed from the case with no questions asked. But Cochran and Shapiro agreed that Ito would suit them fine. Ito brought the parties together in his courtroom for the first time the next Monday.

The defense team regarded Ito as about as good a choice as they could expect. Since Jerry Brown had left the governorship of California in 1978, the Republicans who followed him had named a steady stream of conservative law-and-order ex-prosecutors to the state’s trial and appellate courts. Ito seemed to reflect this trend. After spending virtually his entire professional career as a deputy district attorney in Los Angeles, he had been named to the municipal court bench in 1988 by Governor George Deukmejian and promoted to the superior court the following year. But unlike many of his colleagues, Ito had a reputation as a judge who could be reasoned with, one who would at least listen to the arguments of defense lawyers-especially these defense lawyers. Cochran and Shapiro knew him well. During his own stint in the D.A.’s office, Cochran had supervised Ito. Shapiro, ever the networker, had also crossed paths with the judge any number of times over the years. When, shortly before the murders in Brentwood, the Century City Bar Association named Shapiro “Defense Counsel of the Year” for 1994, Ito sent him a note calling the award “well deserved and overdue.” (Shapiro explained to F. Lee Bailey that he had approved the judge “because Lance Ito loves me.”)

Ito was also known as an energetic judge, and this was important, because speed remained the defense’s objective. Both Shapiro and Cochran saw Simpson’s popularity as a dwindling asset, and they viewed an expeditious trial as imperative. The judge obliged by scheduling jury selection to begin sixty days hence, on September 20. By California standards, Ito’s schedule amounted to warp speed; in ordinary circumstances it often took one or two years for a complex murder case to come to trial. But these delays invariably came at the request of defendants who hoped the cases against them would grow stale. In the Simpson trial, by contrast, the defense lawyers believed that additional time would only allow the prosecution to refine its scientific evidence against their increasingly unpopular client.

For their part, Clark and Hodgman’s strategy never changed much after the preliminary hearing. Using Kato Kaelin and Allan Park, they would prove first that Simpson had had the time and the opportunity to commit the crimes-establishing, through Kaelin, that Simpson was alone after about 9:40 P.M. on June 12, and showing, through Park, that the house at Rockingham appeared empty between 10:35 and 10:55 P.M. Before the jury, the prosecutors would add the specter of domestic violence to establish Simpson’s motive. The core of their case would always remain the physical evidence tying Simpson to the murder scene and the victims to him: hairs and fibers, shoe prints, and, above all, blood. The prosecutors regarded the defense’s rush to trial as an inconvenience, but by both law and custom, government lawyers almost never seek delays. After charging someone with a serious crime, the theory goes, prosecutors are obligated to put up or shut up. Regardless of when Ito scheduled the trial, Clark and company vowed to be ready.

In the summer months before jury selection, the defense, too, did little more than elaborate on the themes it had struck at the preliminary hearing. Of course, the defense lawyers never had any evidence (or hope of finding evidence) that someone other than Simpson had committed the murders. That left them with one option: chipping away at the believability of the government’s case. For this, they had several approaches. First, they would attack the government’s chronology-its “time line”-in an attempt to show that Simpson did not have time to commit the murders. Then they would allege that the LAPD had collected the blood and other physical evidence in a shoddy manner, thus reducing the probative value of the tests on that evidence. And the defense team would allege, as Shapiro did in his interview with me, that at least one police officer had engaged in a conscious effort to frame Simpson for the crimes. These approaches all constituted variations on the principal theme of misfeasance, malfeasance, and nonfeasance by the LAPD, and the defense lawyers sought to elaborate on them in their initial appearances before Judge Ito.

As would so often be the case in this trial, each side had both legal and public relations agendas in the early weeks in superior court. Virtually all of the motions the defense filed over the summer asked Judge Ito to redress some perceived wrong that had been inflicted on its client by law enforcement. These ranged from renewing the claim that the LAPD had illegally searched Simpson’s home shortly after the murders to asserting that the prosecution had improperly failed to share blood samples with defense-team scientists. As the defense well knew, most of these entreaties were doomed to failure. Republican-appointed judges in California, as well as on the United States Supreme Court, have greatly narrowed the rights of criminal defendants in recent years, and thus judges scarcely ever suppress evidence. But in the unique circumstances of the Simpson case, the defense could still “win” in losing these motions. The court hearings over the summer raised a continual drumbeat of accusations against the police-amplified by intense media coverage-for the benefit of prospective jurors in the case. The defense even made a little progress with Ito. Although the judge declined to suppress the fruits of the police search of Simpson’s house on Rockingham, Ito excoriated Detective Vannatter in making his ruling. He said that Vannatter’s error-filled affidavit (in which he wrote that the substance on Simpson’s Bronco was confirmed to be blood and that O.J. had gone to Chicago unexpectedly) was “at least reckless”-words that the defense was only too pleased to see widely reported in the news media.

The defense lawyers also brought an ample load of cynicism to their early pleas before Judge Ito. Immediately after the arraignment, for example, they filed an “emergency” motion asking Ito to suspend all prosecution DNA tests on the blood in the case. They said they wanted a portion of all the samples so that defense DNA experts could conduct their own tests on the evidence. The issue raised difficult technical questions about how much blood the various laboratories needed to perform the different DNA tests, and Ito was plainly feeling his way as he went along, admitting at one point that he was “a political science major who never set foot on the south side of the campus [where the laboratories are] at UCLA.” Still, after days of complex hearings over what became known as the “split” issue, Ito reached a reasonable accommodation for both sides. The prosecution could conduct its tests as scheduled, but to the extent it was possible, the judge ordered that the government reserve 10 percent of each sample for the defense to do its own DNA experiments.

Months later, however, it became clear that, for all its anguished demands for samples of the blood, the defense never did do any of its own refined DNA testing. Raising the “split” issue was simply another excuse to portray its client as a victim of official misconduct, a mistreated defendant denied access to the evidence in the case. Indeed, from this small episode, one can reasonably conclude that the defense lawyers did not want the blood at the crime scene tested because they knew what the results would be.

By summer both sides had largely set their basic trial strategies. Each side then turned, in its own way, to the next and most important challenge on the horizon: how to identify and select the jury that would be the most receptive to its case.

As ever, Shapiro went for the best person he could find. He hired Jo-Elian Dimitrius, a jury consultant based near Los Angeles, whose previous clients included the defendants in the McMartin Preschool case and the police officers accused of beating Rodney King. (As for her work for King’s assailants, Shapiro worried about results, not ideological purity.) Shapiro asked Dimitrius to conduct all the surveys and focus groups she needed to, and then promised to consult her closely when it came time to select the jurors for trial.

The prosecutors, in contrast, followed a more tortuous route to jury selection. Their efforts in this critical area reflected, in microcosm, the problems that beset them from the start-the consequences of their starchy insistence on high ethical standards; their arrogance; their recurring bad luck; and above all, their inability to surmount the ever-present problem of race. In particular, jury selection showcased Marcia Clark’s peculiar mix of virtues and flaws, which in the end combined to render her and her colleagues spectators to the trial unfolding around them.

Shortly before jury selection began, the prosecution honorably forfeited one advantage it might have had as the case proceeded: Garcetti’s office announced it would not seek the death penalty. “Death-qualified” jurors, as they are known-that is, jurors who have stated that they are willing at least to consider imposing the death penalty-are well known for being more likely to convict as well. As a defendant without an extensive criminal past, Simpson was an unlikely candidate for the death penalty, but the prosecution did yield an important strategic advantage when it excluded even the possibility.

In ordinary circumstances, government lawyers do little to prepare for jury selection in a criminal trial. Prosecutors’ offices almost never have the funds to hire jury consultants, so the lawyers generally rely on their experience and gut feelings to do the best they can. All along, Marcia Clark thought a business-as-usual approach would best serve her team. One can see why. Prosecutors tread on dangerous ground when they make decisions about jurors based on generalizations about their ethnic backgrounds-which is, after all, the reason jury consultants conduct surveys and focus groups. In crude form, such actions by prosecutors are flatly unconstitutional. Since the Batson v. Kentucky case, in 1986, the Supreme Court has held that prosecutors may not systematically remove prospective jurors from a criminal case solely because of their race. Batson and some cases that have followed it leave prosecutors considerable leeway on what constitutes racial bias in jury selection, but the subject still gives honorable prosecutors pause. By the summer of 1994, public surveys had already shown profound racial differences in attitudes about the Simpson case. Why, Clark wondered, bring that sort of divisiveness right into the prosecution camp?

Besides, Clark had her own ideas about jury selection. While trying many cases in the Criminal Courts Building, she felt she had always developed a special rapport with one group in particular: black women. In case after case, she won their smiles, their nods, their sympathy. After trials, Clark would often speak to jurors, and the ones who always gave her the warmest greetings were the African-American women. She even had a fan club of sorts, a group of former jurors, all black women, who wrote her letters and kept in touch well after their trials had ended. Clark felt that these women-her women-would respond to the story she would tell of Nicole Brown Simpson’s death. After all, African-American women were disproportionately the victims of domestic violence. They would understand how Simpson’s violence had built inexorably to murder. Clark didn’t need any outsider to tell her what she felt in her trial lawyer’s bones.

Yet a consultant did appear-and not just any jury consultant. In 1976, Donald Vinson was a respected if obscure marketing professor at the University of Southern California when he received a surprise phone call from lawyers at Cravath, Swaine & Moore. The New York firm was representing IBM in a complex antitrust case, and they wondered if Vinson might apply some of his work in the social sciences to the art of jury selection. Spurred by Cravath, Vinson invented a new field. Using the most sophisticated research techniques-including focus groups, survey research, and even the hiring of “shadow jurors,” who would sit in court and give lawyers day-by-day critiques of their efforts-Vinson transformed the way well-heeled trial lawyers prepare for court. He quit USC, founded a company called Litigation Sciences, developed it into the leader in the field, and sold out for many millions of dollars to the Saatchi and Saatchi advertising agency in 1987. When his non-compete agreement expired in 1989, Vinson started from scratch and created a new firm, DecisionQuest, which he promptly transformed into the new industry leader. By the time of the Simpson trial, Vinson employed two hundred people and had an itch for bigger challenges and a wider stage.

Actually, the hankering had started a little earlier. Vinson had been appalled in January 1994 when the first trial of Lyle and Erik Menendez had ended in hung juries. Immodestly perhaps, Vinson felt this failure of the district attorney’s office reflected, at least in part, government prosecutors’ lack of access to experts like himself. Vinson felt that even a temporary escape of such obviously guilty figures as the Menendez brothers brought the whole judicial system into disrepute. He and his friend John Martel, a prominent civil lawyer in San Francisco, discussed the situation and decided to volunteer their services for the next Menendez trial. In March 1994, the two men met with Gil Garcetti and David Conn, who would be leading the retrial, and the prosecutors accepted Vinson’s offer. After an initial round of focus groups, both Garcetti and Conn immediately became boosters of Vinson’s work, and they touted him to Clark. Vinson was game for another pro bono project, and Clark reluctantly agreed to see what he had to offer.

The first test came on July 23, 1994, when Vinson organized a focus group at the Plaza Research Center, an anonymous-looking office building near Los Angeles International Airport. DecisionQuest recruited ten “jurors” for what Vinson called a “mock trial.” Clark had videotaped a twenty-minute version of her opening statement in the trial, and Bill Hodgman, play-acting the part of one of Simpson’s lawyers, had taped a statement on behalf of the defense. The plan was to play both tapes for the “jurors” and listen to their reactions. (Skittish about the process, Clark thought the experiment might leak and asked that her tape not be played. Instead, while the mock jury waited, John Martel listened to Clark’s tape and then paraphrased it for a camera, so the group actually heard Martel for the prosecution and Hodgman for the defense.)

Clark, Hodgman, and Garcetti watched the mock jurors from behind a pane of one-way glass, and what they heard astonished them. DecisionQuest had recruited a diverse panel-five men and five women; six whites and four blacks-and everyone expected some ethnic correlation to the results. But the racial divide, in this test at least, was stark and overwhelming: whites for conviction, blacks for acquittal. What was more, the partisans on both sides held their views passionately. Following the initial votes, Vinson spoke with the black panel members in an effort to learn what might change their minds about Simpson’s guilt. As an experiment, he asked them to change several assumptions about the facts of the case: first, to assume that it was 100 percent certain the blood to the left of the shoe prints at Bundy was that of O.J. Simpson; second, that scientific tests on the glove at the crime scene positively identified the skin oils on the inside as Simpson’s. This was practically a directed verdict of guilty. No matter. Three of the four blacks still said they would vote not guilty.

There was more. Vinson questioned the black women on the panel closely about the issue of domestic violence. He asked them to assume that Simpson had beaten Nicole and that he had threatened and stalked her. Their reactions were uniform:

“In every relationship, there’s always a little trouble.”

“People get slapped around. That just happens.”

“It doesn’t mean he killed her.”

Clark didn’t buy it-not the process, not the answers, and not Vinson. A doughy man with trim gray hair, a Ph.D. who liked being called “Doctor,” Vinson spoke with a quiet assurance that his words were worth the millions that major corporations and law firms paid for them. Clark found him a condescending snob. Vinson thought little better of Clark, regarding her as a narrow-minded civil servant who preferred courthouse bromides to solid information. Neither was entirely wrong about the other, but Clark’s failure to separate the message from the messenger would have disastrous consequences for her case.

Prodded by Garcetti, who remained a fan of Vinson’s, Clark agreed to a more detailed follow-up to the July 23 focus group. Understanding Clark’s fear of leaks in the frenzied atmosphere of Los Angeles, Vinson proposed that they move their next research session out of the city, to a place that was demographically comparable to the site of the trial. Phoenix seemed about right, he said. Vinson would even arrange for a private plane to whisk Hodgman and Clark out of the city secretly so they wouldn’t have to worry about reporters learning of their trip. The prosecutors passed on the plane, but agreed to go to Phoenix and hear more about how prospective jurors might react to their case.

Clark and Hodgman met at the Burbank airport late on the afternoon of August 18 for the short flight to Phoenix. (Vinson and his colleagues flew from a different airport.) Rushing to catch the flight, Clark came to an abrupt stop in front of the metal detector.

“Oh my God,” she said. “I’ve got my gun.”

In light of her high public profile, the detectives on the Simpson case had prevailed upon Clark to start carrying a gun. At the airport, she had forgotten all about it until the last minute. Hodgman ran ahead to the gate to try to hold their flight. Airport security personnel were not amused at her oversight, and their representative told Clark she would have to fill out a federal form if she wanted to be allowed to travel by air. People at the airport scurried to find the right paperwork, but no one could find it in time for Clark and Hodgman to catch their flight. They stewed in an airport lounge, and when the official with the form arrived, he was followed by a reporter and photographer from the National Enquirer. By the time Clark and Hodgman were able to get on another flight and make it to their hotel in the suburb of Peoria, they were frazzled and exhausted, and now beset by a full squadron of journalists demanding to know what business they had in Phoenix.

What should we do? they asked themselves.

“Bag it,” Clark said. “The press’ll be all over this thing tomorrow. Let’s just go home.”

John Martel, who got along better with Clark than Vinson did, tried to talk to her. Perhaps they could salvage at least part of the project, he suggested. Instead of having the lawyers make presentations to the mock jurors, Vinson proposed that they should simply ask the participants questions about what they thought about the case so far. That way, there would be nothing to leak. It would just be a survey of the impact of the media on the case. Reluctantly, Clark agreed to listen.

The following day’s session involved seventeen mock jurors again divided more or less evenly along gender and racial lines. As in the first focus group, the racial division of opinions was nearly absolute, with black women backing the defendant most intensely. Detailed questions revealed even more shocking results. Vinson asked the panel members to rate everyone in the case on a scale of 1 to 10 based on how much sympathy they felt for them. From the black women, O.J. Simpson received all 9’s and 10’s. Nicole Brown Simpson-a murder victim!-scored a 7, a 5, and a 3. Then the questions turned to the mock jurors’ impressions of the lawyers. The black participants almost uniformly described Robert Shapiro as “smart” and “clever,” while the reactions to Clark were scathing:

“Shifty.”

“Strident.”

“Bitch.”

“Bitch.”

“Bitch.”

Marcia Clark had to sit in an adjacent conference room and listen, on a closed-circuit video feed, as black women-her jurors, she had thought-described her in these unflattering terms.

As if the situation could get any worse, several of these mock jurors spent much of the following week giving interviews-on the Today show, CNN, and a variety of other media outlets-and discoursing at length on how unpersuasive the prosecution’s “evidence” had been. Martel was beside himself, desperate to respond in public that there hadn’t even been any presentation of evidence by the prosecution at the focus group. But Garcetti’s spokeswoman, Suzanne Childs, preferred to say nothing. Thus, the impression persisted that there had been some sort of prosecution failure in Phoenix.

With jury selection just a few weeks away, the prosecutors had to take stock. Between the two focus groups and a general telephone survey conducted in Los Angeles by DecisionQuest, there certainly had been no ambiguity in the results: African-Americans remained devoted to Simpson’s innocence, with black women his strongest supporters. According to the telephone poll, black men were three times more likely than black women to believe that Simpson was guilty. Moreover, black women felt overwhelmingly that even if Simpson had engaged in a pattern of domestic violence against his ex-wife, that didn’t make him appreciably more likely to have killed her. According to the telephone poll, a full 40 percent of black women felt that the use of physical force was appropriate in a marriage. And black women especially could not abide Marcia Clark.

Vinson asked why. Evaluating the data in social science terms, he came up with what he called a “psychosexual” reason for the results. He said that African-Americans viewed O.J. Simpson as a symbol of black male virility in a predominantly white world. He was handsome, masculine, likable, and charming. As a consequence, according to Vinson, black women in particular saw Clark as a “castrating bitch” who was attempting to demean this symbol of black masculinity. Everything about Clark was harsh-her demeanor, her clothes, even her rapid-fire speech, which Vinson felt intimidated those of lesser educational backgrounds. Vinson ran his theories by Clark, and the consultant even volunteered some personal advice for the prosecutor. Vinson said that Clark might want to soften up her appearance for the trial-with a new hairstyle, fewer business suits, more dresses.

On the eve of jury selection, Marcia Clark sat down and thought it over-the focus groups, the telephone survey, the jargon-filled demographic analyses, and even the fashion hints. Then she made up her mind: Don Vinson could go to hell. She was going with her gut.

Lance Ito forgot to turn on his microphone when he took the bench on Monday, September 26, 1994-a small sign that the usually meticulous judge had the jitters on the first day of jury selection. It had been a considerable accomplishment on his part to start jury selection on time, but he-like everyone else in the courtroom-knew that the decisions made now would dwarf all others in importance.

Ito had arranged for a huge pool of potential jurors-more than nine hundred-to be brought forward for the Simpson case. The prosecution had asked that the jury in this case be sequestered, a request that had become almost customary in recent years for the highest-profile cases. Sequestration would mean that the jurors and alternates would be almost entirely cut off from the outside world for the duration of the trial. They would live in near isolation, with all but their conjugal contacts monitored for exchanges of information about the case. Not surprisingly, many potential jurors refuse to sit in sequestered juries, especially for trials anticipated to be long. Because Los Angeles County pays jurors a stipend of just five dollars a day, only retirees or mid- or low-level employees of large institutions-the kind that continue to pay employees during jury service-were likely to agree to serve. Conventional wisdom among lawyers holds that a sequestered jury is a convicting jury, but this case, as ever, presented unusual complications. Sequestered juries also tend to scare off most people, leaving only those with a strong incentives-or big agendas-to serve. In this case, the most passionate partisans tended to favor the defense.

The prosecutors hoped the judge might signal to the potential jurors that for all the hoopla surrounding the Simpson trial, it was, in fact, just another criminal case. But Ito, carried away with the excitement of the moment, did just the opposite when the large group assembled before him. “I have never seen a case quite as unusual as this case,” the judge said. “This is perhaps the most important decision you will make in your own personal life.” Ito thought the candidates deserved fair warning of what might be in store for them. As the first group sat before him in the Criminal Courts Building’s large jury-assembly room, Ito told them that the trial was expected to go “through the end of February of 1995.” (He was off by more than seven months.)

The nine hundred potential jurors had filled out brief questionnaires for this first portion of jury selection, called the “hardship” phase. They provided basic demographic information about themselves and supplied reasons why service in the case would be a “hardship” to them. This initial group provided a fair approximation of the overall jury pool in the downtown Los Angeles area. They were roughly equal in men and women, 28.1 percent African-American, 37.9 percent Caucasian, with the remainder divided among Latinos, Asians, and others. (Overall, the downtown jury pool is about 31 percent African-American and 30 percent Caucasian.) The potential jurors were a fairly well educated group; nearly three quarters of them had some college or were college graduates.

The purpose of the hardship phase was to determine which jurors had irreconcilable personal conflicts with jury service and which ones would go on to the next round of inquiries. As it turned out, Ito was a soft touch: Anyone who wanted out got out. Of the 219 potential jurors who arrived on the first day, Ito excused 90 solely on the basis of their questionnaires. Most said that their employers would not pay them during long jury service or that their personal situations made such service impossible. Moving to the next phase, the judge and the lawyers retreated into a small anteroom to question those jurors whose hardship answers were ambiguous. Deirdre Robertson, Ito’s clerk, drew the first juror number to be questioned.

“Number… thirty-two,” she said.

Ito smiled, for this had been Simpson’s number throughout his football career. “I don’t know if this is an omen,” the judge quipped, and the defendant eagerly nodded his head.

The hardship phase of jury selection took only four days, less than anyone had expected. To Ito’s surprise, many jurors seemed downright anxious to be jurors on the case. By Thursday, September 29, the judge had assembled the pool of 304 willing citizens from which the 12 jurors and 12 alternates would be selected.

The lawyers on both sides spent the following ten days poring over the prospective jurors’ answers to a much more elaborate questionnaire that Judge Ito had given them. He had asked both sides to submit questions to him, and in an ominous harbinger of how he would conduct the trial, the judge basically threw up his hands and let both sides ask pretty much anything they wanted. This laissez-faire approach yielded a monstrosity-an eighty-page list of 294 questions, to be answered in writing, many of them calling for essay-type responses. The questionnaire began with reasonable-sounding inquiries about prospective jurors’ employment and prior jury service, but it quickly descended into an absurd and insulting fishing expedition: “Have you ever asked a celebrity for an autograph?” “Have you ever known anyone who had problems leaving an abusive relationship?” “What do you think is the main cause of domestic violence?” (Three lines were provided for an answer.) “Have you ever dated a person of a different race?” “How important would you say religion is in your life?” “Have you or anyone close to you undergone an amniocentesis?” “Have you ever written a letter to the editor of a newspaper or magazine?” “Are there any charities or organizations to which you make donations?” “If not currently a fan, have you in the past ever been a fan of the USC Trojans football team?” “Does playing sports build an individual’s character?”

As the prosecutors digested the vast collection of answers, they learned one important thing: The hardship process had acted like a vacuum cleaner for educated, white, and male jurors-all groups that had showed a predisposition in favor of the prosecution. A little less than one third of the original pool of nine hundred consisted of African-Americans. In the group that remained in the process at the questionnaire stage, their number jumped to about one half. And three quarters of the black prospective jurors were female-the most pro-Simpson group of all.

The lawyers had their chance to meet the jurors face-to-face on October 12, when individual questioning of prospective jurors-that is, voir dire-began in Judge Ito’s courtroom. According to Proposition 115, the law-and-order voter initiative passed in 1990, voir dire in criminal trials was supposed to be conducted principally by the judge, not the lawyers. This is the custom in American federal courts, and it not only speeds the process considerably, it also prevents the lawyers from using their questions to advertise the arguments they will be making during the trial. But in another disturbing preview of what was to come, Ito caved in and let the lawyers do the asking-and the puffing. Clark, for example, asked many jurors whether “the celebrity of the defendant would affect your ability to render a verdict.”

One theme of the defense lawyers’ stood out. In question after question, Robert Shapiro and Johnnie Cochran made sure that the jurors knew this was a case about race.

“Now, with regard to other aspects of answers that you gave us,” Cochran said to a white candidate on the first day, “on the question of whether or not you felt the issue of discrimination against African-Americans, you said you felt it was a serious one, is that correct?”

“Yeah…” the man said.

“All right,” Cochran went on. “Now, with regard to the whole question of race, interracial marriage, you felt you had no problems with that, is that correct?”

And so it went… day after day. Again, to Ito’s surprise, many jurors seemed to be auditioning, rather than shrinking from the prospect of service on the case. Many seemed to be lying, too. In Vinson’s telephone survey about 60 percent of the respondents had said they had more or less made up their minds about whether O.J. Simpson was guilty of the two murders. But among those who answered the questionnaires, only 23 percent said they had. Either the prospective jurors were an usually impartial group, or-more likely-they were playing coy in order to slip through the process.

Injury selection, as in the rest of the case, Simpson’s lawyers coordinated their courtroom and public relations strategies. On October 27, for example, Hodgman sharply questioned an elderly black man whose answers demonstrated that he had a lengthy catalogue of grievances against the LAPD. Any responsible prosecutor would have used this juror’s voir dire to lay the groundwork for a request to have him excused for cause. And that is what Hodgman did, although the process clearly irritated the juror, who said to the even-keeled prosecutor, “You are sort of riling me.” The defense, however, launched a coordinated media attack on Hodgman. Immediately after the day’s session, Cochran ventured from Ito’s ninth-floor courtroom up to the media headquarters on the twelfth floor, where he held an impromptu news conference. “We’re really concerned about the tenor of the questions and the way they go after certain jurors,” Cochran said. As if the point could be missed, while Cochran was discoursing upstairs, Shapiro addressed the reporters who were assembled in the courthouse lobby. Of Hodgman’s questioning, Shapiro said, “It implies an insidious effort to try to get black jurors removed for cause because they are black, because they have black heroes, and because O.J. Simpson is one of them. There’s no other reason.” The lawyers’ salvos led the local news that evening, and they paid off as well in the front-page headline on the next day’s Los Angeles Times: PROSECUTORS TARGETING BLACK JURORS, SIMPSON TEAM SAYS.

Still, the case was making progress of sorts, as the parties had a chance to question a few jurors each day. Then forward momentum came to an abrupt halt-and the case nearly collapsed altogether-thanks to the literary labors of one diminutive woman.

There is surely no single appropriate way to mourn the loss of a friend. It is fair to say that Faye Resnick coped with the death of Nicole Brown Simpson in a way that reflected Resnick’s bizarre and chaotic life. She chose to grieve with a psychic, who came up with some useful career advice as well as spiritual succor. Talking with me shortly before Simpson’s trial began, Resnick said, “When I went to see a psychic after Nicole was murdered, the woman gave me a message from Nicole… The psychic said, ‘You will be writing a book. Nicole wants you to be faithful to your heart. She wants you to call it as you see it.’ ”

At the time of the trial, Faye Resnick was thirty-seven years old, a native Californian with a trim build and orange hair. When we met, she was wearing bangles on both arms and three rings on her left hand, including one on her thumb. As the ex-wife of Paul Resnick, a wealthy Los Angeles businessman, she dabbled in charity projects and worked hard on her appearance. Nicole’s advice from beyond the grave actually fit well with Resnick’s needs. Faced with a dwindling divorce settlement and an expensive lifestyle, Faye needed the money a book deal could provide. The milieu in which she and Nicole lived is neatly summarized in a brief sentence in the book she eventually did write: “Almost every woman I know has had breast implants.”

Resnick and Nicole met in 1990. They became close friends after Faye separated from Paul Resnick in early 1991. Resnick became friendly with O.J., too, as he and Nicole pursued their on-again, off-again relationship in 1993 and 1994. After the murder, however, she became convinced that O.J. had killed Nicole, and she was scathing on the subject. According to Resnick, “You would go to his house, and the children were not able to play in the house.” She added that the kids were not even allowed in the kitchen at certain times, because O.J. and his housekeeper couldn’t stand the mess they would make. “O.J.’s a double Cancer, I’m a double Cancer,” she said. “I get it-I don’t like messes-but kids are kids.” Resnick implicitly blamed the stress of mediating between O.J. and Nicole for the recurrence of her own drug problem. In the decade before the murders, she did two stints at the Betty Ford rehabilitation center, and in June 1994, the week before Nicole’s murder, she checked into the Exodus Recovery Center, in Marina del Rey. Shortly after the murders, Resnick said, she began to fear that she would be killed by O.J.’s loyalists.

Within a week or so of the murders, Resnick reported her gathering fears to Arthur Barens, a lawyer she knew through fund-raising efforts for the Beverly Hills school system. Barens helped Resnick through her first meetings with the prosecutors in the case, and as they talked further at other meetings, the idea of a book came to the surface. “The book idea got started because she wanted to do something to be of service to the Simpson children and battered women,” Barens said. “She told me at the same time that she had maintained a diary about what was going on between O.J. and Nicole. She was afraid for her well-being. I told her, for her safety, to record on tape what she remembered.” Resnick made some recordings and gave them to the lawyer. Barens might have protected Resnick’s safety merely by placing her tapes in a safe-deposit box; instead, he turned to Warren Cowan, a public relations executive, for advice on how to make use of them.

Cowan put Barens in touch with his client Michael Viner, a former record company executive, who had founded Dove, a company devoted principally to audiobooks, a decade earlier with his wife, the actress Deborah Raffin.

Viner quickly signed Resnick to a six-figure advance and then looked for a collaborator for her. “I knew Mike Walker in passing, and I had seen him on Nightline and Larry King Live,” Viner explained. “And I sought him out.” Shortly after the contracts were signed, Viner sent Walker and Resnick to a ski chalet he owns in Stowe, Vermont, where he gave them three and a half weeks to produce a manuscript, in secrecy. The partnership had its strains. According to Walker, “At one point, I telephoned Viner and said, ‘Look, this woman is driving me nuts. She wants cappuccino.’ The next day, a cappuccino machine arrived by Federal Express.”

Ultimately, however, the pair produced the manuscript of what became the book Nicole Brown Simpson: The Private Diary of a Life Interrupted. Resnick and Walker’s portrait presented Nicole as a brainless, sex-obsessed young woman whose banality was exceeded only by that of her ex-husband. For example, Nicole was portrayed as having an enthusiasm for fellatio with virtual strangers-a practice Resnick called the “Brentwood hello.” More significant as far as the trial was concerned, Resnick depicted Simpson as an insanely jealous former spouse who openly discussed cussed his thoughts of murdering Nicole. In the book, Resnick quoted Simpson as saying such things as “I can’t take this, Faye, I can’t take this. I mean it. I’ll kill that bitch.” (When I asked Resnick if she had any literary influences, she said, “I wasn’t inspired by a book to do this. The movie that inspired me was The Pelican Brief.”)

The irony of Resnick’s book is that notwithstanding the accusations against O.J., it amounted to a generous gift to the defendant-and another example of the ill fortune of the prosecutors in this case. With her history of drug abuse, Resnick would have made a dicey prosecution witness in the best of circumstances. Still, if she had simply come forward after the murder and told her story to the police, the prosecutors probably would have called her to the stand. But the book made Resnick anathema to Clark and Hodgman; it represented the cash-for-trash problem writ large. Resnick undoubtedly had close ties to both O.J. and Nicole, and many, if not most, of her accusations had the ring of truth about them. But her conspicuous cashing in on her access to the principals would have given the defense too much ammunition in their cross-examination. Both during and after the trial, Resnick emerged as one of Simpson’s most vocal public accusers. But in fact her greed-and that of her publisher-made her an accomplice to O.J.’s acquittal.

Aiming for maximum publicity, Viner and Resnick decided to release Private Diary in the middle of jury selection-on October 17. The news media reacted predictably, hyping Resnick’s accusations against Simpson. On the day it came out, Resnick’s book actually rated rather modestly on the Simpson-news Richter scale-bigger than my Fuhrman story but smaller, certainly, than the release of the tape of Nicole’s plaintive calls to 911. What made this story different was that it broke when Lance Ito was in charge of the case-and his reaction to it revealed much about him and the future course of the trial.

Lance Ito thought a great deal about the news media. In a casual aside in court one day, Judge Ito remarked that he read five newspapers a day. In a later order to potential jurors about their television-watching habits, he specifically named, apparently off the top of his head, twenty-five different programs that were off limits, including Marilu, Leeza, Jenny Jones, Sally Jessy Raphaël, Oprah, Donahue, Geraldo, the news on MTV, and something called Press Box on a network called Prime Ticket. During his off hours, the judge wore a Today show baseball cap. In the middle of jury selection, Ito even gave a much-hyped interview to Tricia Toyota of KCBS television in Los Angeles. Though the judge said nothing sensational in his conversations with Toyota, Ito definitely complicated jurors’ efforts to avoid news coverage of the trial; he even had to dismiss some potential jurors because they had seen parts of his TV interview. Throughout the trial, Ito would often delay court sessions so that he could usher well-known media figures, like Geraldo Rivera, and the occasional movie star, into his chambers for private chats.

As a result of Ito’s media obsession, the import of the Resnick book eluded him. The sensible course would have been to ignore Private Diary and, if the subject came up at all, to remind the jurors that they were to rely only on evidence presented in court. Like every other sensation in the case, Resnick would have faded, too. But Ito couldn’t leave Faye Resnick alone. On Tuesday morning, October 18-without even being asked by the parties-Ito suspended jury selection for forty-eight hours, he told the prospective jurors, because of “the publication of a book that has caused the Court great concerns about the ability of Mr. Simpson to get a fair trial. I need to look into the ramifications.” The judge even wrote to the heads of the major news networks and asked them to cancel interviews they had scheduled with Resnick. (CNN complied, but Connie Chung’s interview with Resnick on CBS went ahead.) Ito’s decision to stop jury selection prompted a predictable reaction. It fueled intense curiosity about the book in the public-and probably in the prospective jurors as well. Thanks to the push from Ito, Private Diary rocketed to the number one spot on the New York Times best-seller list, passing Pope John Paul II’s Crossing the Threshold of Hope. (As for Resnick’s purported desire to help the Simpson children, Dove donated $10,000 to the foundation Nicole’s parents established in her memory. This largesse amounted to about one cent for each of the one million or so copies of Private Diary that were sold.)

Surprised as anyone by Ito’s reaction, the defense lawyers tried to use the Resnick crisis to provoke the judge into abandoning the case entirely. In a private conference in chambers on Wednesday morning, October 19, Shapiro made a rambling plea for Ito to do one or more of the following: dismiss all charges against Simpson; find Barens, Viner, and Dove Books guilty of obstruction of justice; sanction the district attorney’s office for failing to prevent publication of the book; and/or delay the trial for a year and release the defendant on bail. With the exception of the request for a continuance, all of Shapiro’s demands were absurd, but Ito patiently waited out Shapiro’s harangue. As for bail, Shapiro said Simpson’s attempt to flee on June 17 should not be held against him. “He has now had time to reflect upon this case, to reflect upon the evidence, and to be in a place where he wants to contest these charges in a court of law, and he wants to clear his name,” Shapiro said.

Clark burned when she heard the defense lawyer complain about how his client was suffering from the pretrial publicity. “The defense has also leaked, as the Court is very well aware, in a very hideous and damaging way,” Clark said in characteristic sputtering indignation. “They have attempted to speak of Mark Fuhrman with the most vicious of allegations concerning racism, one of the most inflammatory charges that could possibly be made… They have attempted to capitalize on it… again in the questionnaire with every question posed concerning the issue of racial issues and racism. The defendant is again playing a race card while denying they’re playing a race card, a very subtle game, but a very dangerous one for the People, because the officer who found the key piece of damaging evidence they have attempted to discredit in the most hideous of ways.”

Shapiro hated being confronted with his own fingerprints on the racial controversies in the case. As always, he wanted things both ways. He wanted to use race to get Simpson acquitted, but he never wanted to admit that this was what he was doing. “Regarding the race issue,” Shapiro said, “I have stood before you, I have stood before the American public, and said race is not and will not be an issue in this case. I still stand by that. Credibility will be an issue in this case. Regarding the article in The New Yorker,” Shapiro went on, reacting to what Clark had said, “I was assured that it was going to be a photo essay… pictures only, no captions.” This was not true; I’d never said a word to Shapiro about how our interview might be illustrated. Shapiro went on before the judge: “Jeff Toobin’s article came out, and I was shocked to find my picture there by innuendo suggesting that I had somehow made derogatory remarks toward Detective Fuhrman. That is not true. In fact, a careful reading of that article as well as an analysis by journalists have the article saying that was a theory that may possibly be explored by the defense.”

This monologue by Shapiro was more than Cochran could take. He had been on the case for about four months at this point, and thus far he had carefully deferred to Shapiro as lead counsel. But Shapiro’s desire to finesse the race issue-that is, to call Fuhrman a racist and then deny that race mattered in the case-appalled Cochran. Over these four months, Cochran had spent more time with Simpson than Shapiro had, and the black lawyer knew he would be taking a major, if not the lead, role when the trial began. Cochran wanted race front and center in the case, and he wanted to let Ito and the prosecutors know that he wasn’t about to apologize for it, either.

“I just want to say something about this ‘race card,’ ” Cochran interjected, beginning a monologue that could have served as a personal credo. “I’ve been trying cases for a very long time, both civil and criminal throughout this country, and anybody who doesn’t believe that when you have a case like this, when you have a case of murder, that race plays a part in everything-We don’t introduce that… There are racial issues. These jurors know it. Everybody knows it… Race plays a part in everything in America…

“Every time people don’t believe race plays an issue, they wait until every few years until a major riot comes along and then people say, ‘Well, we are not going to take it anymore.’ And that’s very unfortunate, but that’s brought about from people who are totally insensitive to the problems of race in America and the underclass.”

For Johnnie Cochran the connections between his millionaire client and “the problems of race in America and the underclass” were so obvious as not to require elaboration.

But what was the point of all this conversation? Wasn’t this supposed to be a legal argument about a motion in a criminal case? It was-and yet Shapiro was carrying on about his controversies with the media, Clark was raging against Shapiro, and Cochran was discoursing about the black underclass. This was how Lance Ito conducted oral argument, as a sort of group therapy through collective stream of consciousness, a process in which lawyers could talk for as long as they wanted about whatever happened to pop into their heads.

The subject the lawyers were nominally discussing was whether Simpson should be released on bail. As part of a subtle campaign to win Simpson’s confidence-in part by showing that he himself had confidence in Simpson-Cochran suggested that Ito speak to the defendant about whether he should be released on bail. So, seated on a chair in front of Ito’s desk, Simpson said, “Well, I feel I’ve been attacked here today. I’m an innocent man. I want to get to a jury. I want to get it over with as soon as I can.

“I have two young kids out there. That’s my only concern. In the beginning, when they told me we should slow down, maybe we should slow down. I’ve read Mr. Gerry Spence’s book that you shouldn’t rush the jury. I’ve got two young kids out there that don’t have a mother. And I didn’t do it. I want to get to the trial as soon as I can get to trial. I’ve been told by everybody that I know, everybody that I spoke to, it is impossible for me to get a fair trial at this point. They told me maybe we should wait, maybe we should put it off. I can’t afford to be away from my kids any longer than I have to be away from my kids at this point.

“Mrs. Clark-Miss Clark said that I was trying to run. Everyone knows that I called my father-in-law. I was not in a frame of mind-I admit that I was not in the right frame of mind at the time I was trying to get to my wife-”

“Your Honor, excuse me,” Shapiro broke in, trying to stop his client’s increasingly meandering speech.

“I was headed back home,” Simpson continued.

Shapiro turned to O.J. “Mr. Simpson, I am telling you that I will not allow you to speak, and I will resign as your lawyer if you continue to do so.” This threat, contained in a transcript that the media-savvy Shapiro knew would be released to the public, was actually his way of taking at shot at his rival Howard Weitzman. Weitzman had been criticized for failing to make just this kind of effort to prevent O.J. from talking to the police on June 13. This time Simpson did stop talking.

As he would so often, Ito backed away from the precipice. His fury about the Resnick book cooled, and he agreed to resume jury selection the following day. Ito, of course, did not release Simpson on bail. He tinkered with the process only by stopping the questioning of jurors in front of one another, a change he hoped would encourage candor.

The Resnick controversy did provoke Ito into taking a hard line with the jurors on the question of their own habits of media consumption. After the Resnick book was published, the judge ordered the remaining candidates not to watch any television, read any newspapers or magazines, or set foot in any bookstore. Ito discharged one juror after she admitted to watching videotaped episodes of Beverly Hills 90210 and Melrose Place-no matter that her husband had first deleted all the commercials. A man was excused because he had watched cartoons with his grandson, as was a woman who watched a Barbara Stanwyck movie on television. With each winnowing, the jury pool grew ever more African-American and female.

Finally, the day came when the parties were to exercise their peremptory challenges-which would allow them to remove jurors without having to offer reasons. Each side had twenty challenges. For the defense, Jo-Ellan Dimitrius consulted closely with Shapiro and Cochran; she had been in the courtroom for every moment of jury selection, and the lawyers huddled with her about each decision. Dimitrius had put the key findings from her research in a memorandum to the defense team, “General Considerations for Jury Selection.” Under the heading “Most Preferred Jurors,” Dimitrius listed the following attributes: “Young; Less Educated; Blue Collar; African-American; No Prior Jury Service; Lower Income.” (These were, predictably, the mirror image of Vinson’s findings.) Cochran and Shapiro hewed closely to her suggestions.

Marcia Clark had allowed Vinson to sit in court for a single day of jury selection, after which she banished him; she never consulted him again. On December 8, the parties exercised the last of their challenges and accepted a panel of twelve jurors and twelve alternates. Their ethnic profile represented a stunning divergence from the group that had originally reported for duty-or, even more so, from Los Angeles County as a whole. Of the twenty-four jurors, there were fifteen African-Americans, six whites, and three Hispanics-in a county that is just 11 percent black.

Over the many months to come, ten jurors would be replaced by alternates. (Curiously, no alternates were ever removed from the case.) Based on their answers to the questionnaires, the twelve jurors who ultimately decided the case against O.J. Simpson had the following characteristics:

• All twelve were Democrats.

• Two were college graduates.

• Not one juror read a newspaper regularly.

• Nine lived in rented homes; three owned homes.

• Two had supervisory or management responsibilities at work; ten did not.

• Eight regularly watched television-tabloid news shows like Hard Copy. (Vinson’s polling data had found a predilection for the tabloids a reliable predictor of belief in Simpson’s innocence.)

• Five said they or a family member had personally endured a negative experience with law enforcement.

• Five thought it was acceptable to use force on a family member.

• Nine-three quarters of the jury-thought O.J. Simpson was less likely to have murdered his wife because he had excelled at football.

The final group included one African-American man; one Hispanic man; two white women; and eight African-American women.

On the whole, Marcia Clark was pleased, especially with the alternates. She and Bill Hodgman didn’t even exercise all twenty of their peremptory challenges.