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

6. HAIRSPLITTING

Simpson was arraigned in municipal court on the following Monday, June 20. He was physically transformed from any O.J. Simpson the public had seen before. Looking dazed and bewildered, he staggered from the holding pen to the defendant’s table before Judge Patti Jo McKay. He wore a black suit and white shirt, but he was denied a tie, belt, and shoelaces-even, apparently, collar stays-for fear that he might turn them into instruments of suicide. Head cocked to one side, Simpson stared vacantly around the courtroom. Asked his name, he appeared confused, and Shapiro had to prompt his answer. Asked his plea, Simpson muttered quietly, “Not guilty.” The proceeding was over in moments, and in the only real business transacted, Judge McKay scheduled the preliminary hearing for ten days hence, June 30.

Both sides held press conferences the same day. There was, of course, nothing that required the lawyers on either side to answer reporters’ questions at that time, and much to recommend silence. Shapiro had a client who had acted like a very guilty man the previous Friday. The circumstances seemed to call for a discreet weighing of options. Garcetti’s prosecutors, on the other hand, faced the prospect of convicting a popular celebrity. Their task seemed to call for a serious, untheatrical getting down to business. The worst thing they could do was appear unduly zealous. Yet the adversaries could not resist an attempt to posture and spin. Shapiro fancied himself a master at manipulating the press. Likewise, Garcetti-under the tutelage of his ever-present director of communications, ex-prosecutor and ex-local news anchorwoman Suzanne Childs-had similarly high regard for his own talents in this realm. In fact, throughout the case, many efforts at press management by both sides failed, and that was never more true than after the parties’ first day in court.

Shapiro faced a bank of television cameras at his Century City office shortly after the arraignment. Looking almost as sorrowful as his client had in court, Shapiro offered Simpson only lukewarm support. Shapiro portrayed himself less as an advocate than as someone who was looking for answers just like everyone else. “At the present time,” he said, “I have not discussed at any great length the facts of the case with [Simpson].” The lawyer was asked about the possibility of raising an insanity defense-that is, one based on the premise that Simpson had committed the murders. “Every possible defense has to be considered by any trial lawyer,” Shapiro responded, “and I certainly would reserve all possibilities.” His lawyerly words made Simpson look even more guilty.

Yet the prosecutors made even more trouble for themselves. Since the murders, Garcetti had turned himself into a virtual interview machine. In addition to his press conferences, he appeared on ABC’s Nightline, CBS Evening News, NBC Nightly News, Today, and a special nighttime edition of Good Morning America. Garcetti did use these appearances to focus, in part, on his longstanding and heartfelt devotion to the issue of domestic violence, but the promiscuity of his efforts suggested he was seeking attention for himself as much as for any issue. In an especially surreal touch, Garcetti appeared live on ABC to describe the freeway chase as it was happening. “We’re all hurting right now,” Garcetti told Peter Jennings as the Bronco sped on. “We’re all sharing a very painful experience.” But in truth, over these first fevered days, Garcetti didn’t looked pained at all; rather, he looked like he was exploiting the moment for all it was worth. He even strayed into some dubious ethical territory, predicting that Simpson would ultimately admit to committing the murders. Appearing on yet another national program, This Week with David Brinkley, on Sunday, June 19, Garcetti said, “Well, it’s not going to shock me if we see an O.J. Simpson, sometime down the road-and it could happen very soon, it could happen months from now-say, ‘Okay, I did do it, but I’m not responsible.’ We’ve seen it in Menendez. It’s going to be a likely defense here, I believe, once the evidence is reviewed by the lawyers.”

Marcia Clark’s June 20 press conference only contributed to a perception that the prosecution camp was celebrating. It was the public’s first real view of Clark, and a revealing one at that. She was a formidable extemporaneous speaker. There was also no mistaking the sincerity of her passions-or the fixity of her beliefs. Like her boss, Clark did not even pay lip service to such legal niceties as the presumption of innocence. She was, if anything, more categorical than Garcetti in her judgments of the accused. Although it had been just two days since the arrest-and only eight days since the murders-Clark announced, “It was premeditated murder. It was done with deliberation and premeditation. That is precisely what he was charged with because that is what we will prove.” Thus, in a single breath, Clark wrote off the possibility of arguing that Simpson had murdered his ex-wife in a fit of jealous passion-a perfectly reasonable theory of the case. Asked about the possibility of accomplices, Clark again spoke with total confidence, even arrogance: “Mr. Simpson is charged alone because he is the sole murderer.” Of course, no responsible prosecutors would have filed charges against Simpson unless they felt he was guilty. But Clark and Garcetti put their case at risk when they let themselves, rather than the evidence, do the talking-and they heedlessly limited their options at trial by rushing into a single theory about how the crime had occurred.

Clark was an accomplished lawyer but a far from obvious choice to prosecute such an important case. In fact, Garcetti never really assigned Clark to the Simpson case at all; she had simply taken Vannatter’s call on Monday, June 13, and stayed with the case through the tumultuous first week. It is difficult to say whether Garcetti, given a real choice, would have picked Clark. She had prosecuted several murders, but other senior deputies had tried more, and more difficult, cases. Moreover, Clark’s June 20 performance suggested that for all her competence, there may have been good reason not to choose her. Among those with long memories of the Los Angeles District Attorney’s Office, Clark’s behavior at the press conference raised disquieting echoes. The office’s losing streak in big cases was well known. What was less known-or at least less commented upon in the media-was that most of those cases had been lost by women prosecutors with pugnacious demeanors, among them Lael Rubin in McMartin Preschool; Lea D’Agostino in Twilight Zone; and Pamela Bozanich in Menendez. All of these prosecutors came across as aggressive and outspoken, just as Marcia Clark did at her postarraignment press conference. Of course, it might have been just a coincidence that it was female prosecutors in Los Angeles who had failed in the high-profile cases-just as the harsh judgments of them might have been the result of sexism-but Shapiro and his colleagues on the defense team regarded these perceptions as important. From the beginning, they thought that, like the other prominent and unsuccessful prosecutors, Clark would come across as unduly harsh; consequently, they were delighted she had the case.

Ironically, the public relations concerns that guided the district attorney’s office made Clark’s position on the case unassailable. Because the events of the first week had been so public-and Clark such a visible part of them-removing her would have caused a considerable stir. During that week, Clark herself had clearly committed no gaffe that would have justified her being pulled from the case. Whether or not Garcetti admitted it, a decision to remove her would have been seen as at least partially driven by her gender, as well as the office’s history of failure by female prosecutors. Garcetti’s base of liberal Democratic supporters would have rebelled, and the media would have rushed to the story.

And there was another, less public, reason Garcetti was bound to stay with Clark, this one rooted in the arcane internal politics of the district attorney’s office. Clark’s best friend in the office was prosecutor Lynn Reed Baragona. Several years earlier, Lynn Reed, as she was then known, had sued Gil Garcetti, then just a supervisor in the D.A.’s office, alleging sexual discrimination in promotions. The case was settled to Reed’s satisfaction before it was adjudicated, but the rancor between Reed and Garcetti was long established and well known. (The D.A.’s office abounds in these sorts of interwoven connections. Though the office has nearly a thousand prosecutors, the same set of senior people has run the office for decades, and the personal, social, and professional relationships among them yield a byzantine web of rivalry, grudge, and affection. For example, Lynn Reed had once dated prosecutor Peter Bozanich, who later married the prosecutor who would go on to lead the first Menendez brothers trial. At the time, Peter Bozanich was sharing an office with fellow prosecutor Lance Ito, who in turn was dating prosecutor Jackie Connor. Connor went on to marry yet another prosecutor, James Bascue, who would become a superior court judge and Ito’s mentor in the district attorney’s office and, later, on the bench. Connor later became a superior court judge as well, and she presided over Marcia Clark’s biggest case prior to Simpson-the Mount Olive Church murders.) If Garcetti had taken Clark off the case, Clark’s supporters might have suggested that he was retaliating against her for her friendship with Lynn Reed Baragona, and thus raised the issue of the sexual discrimination claim. The district attorney had no interest in stirring up that old controversy.

Besides, Garcetti gave little thought to replacing Clark that first week because everything seemed to be going so well. With Simpson reeling, Garcetti and Clark’s instincts told them to keep the pressure on. The hiring of Shapiro had also buoyed the prosecutors. No one could remember the last time Shapiro had taken a murder case to trial in superior court. (In fact, he never had.) Shapiro had the reputation for trying to delay cases into oblivion and then, when the heat died down, striking a plea bargain. That, after all, was what happened in most cases: Defense lawyers stalled; prosecutors pushed. True to their customary role, the prosecutors tried to skip the June 30 preliminary hearing altogether.

The California tradition of holding preliminary hearings is a relative anomaly in American criminal law. “Prelims,” as they are known, are essentially miniature trials held in front of a judge rather than a jury. For many years, California law required prelims-a municipal judge would determine, in a felony case, if there was “probable cause” that the defendant had committed the crime. In fact, prosecutors almost never lost preliminary hearings-that is, judges rarely tossed out cases on the grounds that the government had failed to meet its burden. Still, prosecutors loathed prelims, which forced them to offer up their witnesses for cross-examination by defense lawyers at a very early stage in the game. An effective cross-examination of a government witness at a prelim sometimes rendered that person virtually useless at trial or, at the very least, gave the defense a road map to weaknesses in the prosecution’s case. (Not surprisingly, defense lawyers loved prelims.) So, as part of the law-and-order movement that swept California in the 1980s and 1990s, prosecutors fought to cut back on prelims. Specifically, in a referendum proposed by the law enforcement community and passed by state voters in 1990, the government won the right to present most cases, including murder cases, to grand juries rather than at preliminary hearings.

By contrast, prosecutors love grand juries, whose deliberations are secret. Most important, defense lawyers are not allowed to cross-examine witnesses, or even to attend the proceedings. Asked by a prosecutor to indict someone, grand juries invariably do. Grand juries allow prosecutors to move cases to trial without exposing more than a small fraction of their evidence-and they obviate the need for preliminary hearings. So in the Simpson case, the prosecutors set out to have the grand jury issue an indictment before the preliminary hearing was to begin on June 30. That meant Clark had to move quickly. In fact, she had begun her presentation to the grand jury on Friday, June 17, even before Simpson was tracked down and arrested.

The grand jury met in the downtown Criminal Courts Building-a fact of considerable significance in one of the biggest controversies of the case. Since the murders had occurred in Brentwood, prosecutors theoretically had the right to try the case in the Santa Monica branch of superior court-and thus to have access to that court’s substantially white jury pool. The differences in the jury pool between Santa Monica and downtown were dramatic: in Santa Monica, 80 percent white and 7 percent black; downtown, 30 percent white and 31 percent black. (Latinos and Asians accounted for most of the remainder in both areas.) Why, it has long been asked, did prosecutors choose to try a popular black celebrity in front of a heavily black jury pool?

In fact, the prosecutors made no such choice. A variety of factors made a trial in Santa Monica impossible from the outset. First, the courthouse there had sustained considerable damage in the Northridge earthquake, which took place just six months before the murders. It was in no shape to receive the onslaught of media and public demands that would accompany the Simpson trial, and damage to the district attorney’s offices there had left them all but uninhabitable. Second, the county had set up metal detectors and other logistical accoutrements to lengthy, high-publicity cases on the ninth floor of the downtown courthouse; the judges insisted that all such cases be tried there. Third, the D.A.’s office had placed the special-trials division-Marcia Clark’s unit-in the Criminal Courts Building just so that it would be near those ninth-floor courtrooms. And finally, there was a grand-jury room in the Criminal Courts Building, but not in Santa Monica; cases indicted by the downtown grand jury usually stayed there for trial. In light of all this, trying the Simpson case downtown was such an obvious decision that the prosecutors never even discussed any alternative possibilities that first week.

It was Gil Garcetti who muddied the waters on the downtown versus Santa Monica issue. Shortly after Simpson’s arrest, Garcetti told several reporters that he wanted the Simpson trial held downtown because a verdict rendered there would have more “credibility” than one in Santa Monica. He said a downtown jury would contribute to the “perception of justice” surrounding the case. These remarks were typical of the elliptical way the participants in the case discussed race in its early stages, but Garcetti’s message was clear: A downtown jury would have substantial African-American representation, and its judgment on a black American hero would be respected. In addition, as a Democrat elected with substantial African-American support, Garcetti had to pay homage to his base, and trying the case downtown was one way to do it. Even more important, Garcetti lacked the stomach for the kind of fight an effort to conduct the trial in Santa Monica would have provoked. He would have had to argue that he wanted to be in Santa Monica because he wanted white jurors-a politically unpalatable prospect, especially on a issue where he was probably doomed to lose anyway. Garcetti’s coded remarks about “credibility” and the “perception of justice” came at a time of, and as a result of, the prosecution’s first blush of confidence after the Bronco chase. At that point the D.A. and the prosecutors on the case had no doubt about their ability to win the case, wherever it was tried. There seemed little harm in the district attorney’s boasting about his concern for the sensitivities of a crucial constituency.

In fact, Garcetti’s remarks would backfire dramatically. Once the case began to turn against the prosecution and racial issues emerged at the center of the trial, reporters began pestering Garcetti with questions about why he had decided to have the case tried downtown-i.e., why he had given up the opportunity for a much “whiter” jury. (Of course, if he had tried to keep the trial in Santa Monica, these same reporters would have demanded to know whether his attempt to keep the case away from downtown was “racist.”) In answering these questions long after the original decision to go downtown, Garcetti fell back on the truth: that the earthquake damage to the Santa Monica courthouse and other factors had tied his hands. But because Garcetti’s past remarks suggested that he had made a choice to go downtown, the issue dogged him. It was a classic example of the phenomenon of a lawyer’s “spin” returning to haunt him. But Garcetti’s answer-his last answer, anyway-was the truth: The Simpson case could never have been tried anywhere except the dreary and decaying Criminal Courts Building in the civic heart of downtown Los Angeles.

On Friday, June 17, the grand-jury investigation of O.J. Simpson began with the sound of a telephone jarring Kato Kaelin awake at 6:00 A.M. Seeking relief from the chaotic scene at Rockingham after the murders, Kaelin had moved in temporarily with a friend, Grant Cramer. In the early morning call, an LAPD detective informed Kaelin that he would be coming to Cramer’s home at 8:00 and escorting Kaelin downtown for more interviews with the police. At the appointed hour, a pair of detectives arrived with a grand-jury subpoena demanding that Kaelin provide testimony that very afternoon.

Marcia Clark had not yet met Kato Kaelin, but the detectives had warned her about this skittish and eccentric witness. Clark and David Conn worried that he might be manipulated by Simpson’s lawyers if they had a chance to get to him first. (In fact, though the prosecutors didn’t know it at the time, Kaelin had already spoken to Shapiro.) The prosecutors felt that they needed to lock in Kaelin’s story under oath or it might change to help the defendant. This was a highly unusual, and confrontational, way to proceed. Grand-jury witnesses invariably receive more than a few hours’ notice.

Through friends, Kaelin had managed to arrange for a criminal defense lawyer to meet him at the district attorney’s office. Escorted into Marcia Clark’s office on the eighteenth floor late Friday morning, Kaelin tried to stall until his lawyer, Bill Genego, arrived. Kaelin made small talk with Clark about the poster of Jim Morrison that adorned her office, but he fended her off when she tried to discuss the murders. Not for the last time, he left Clark a thoroughly frustrated woman.

Finally, Genego arrived to intervene.

“It’s five to one,” Clark said. “You can have three minutes with your client before we take him down to the grand jury. He’s going on at one o’clock.”

“That’s insane,” Genego replied. “You don’t subpoena someone for the same day he’s going to testify.”

“He’s going in,” Clark said. “That’s that.”

After Genego and Kaelin conferred briefly in Conn’s office, the defense lawyer renewed his plea for a little time to talk the situation over. No deal, said Clark. Get in the elevator.

Downstairs, in a small anteroom, Genego made a final plea to Clark just before she was to take Kaelin inside the grand-jury room to testify. “Look,” said Genego, “let’s just put this off until Monday.”

“No way,” said Clark.

“If you force him to go in there, I’ll just tell him to take the Fifth and you won’t get anything from him.”

“He’s already spoken to the cops on Monday,” Clark said, then handed Genego a copy of the police report of Kaelin’s statement. She asked Kaelin, “Aren’t you going to say the same thing you said before?”

Genego put up his hand. “I told you I don’t want you asking him any questions.”

Clark was incensed. “I’ll ask him questions if I want, and if you try to interfere I’ll have you arrested for obstruction of justice.”

An experienced criminal lawyer, Genego had never before been threatened this way by a prosecutor. Left no alternative, Genego scribbled out a page of instructions and handed them to Kaelin before Clark escorted him into the grand-jury room. Clinging to his lawyer’s script, Kaelin picked his way through the jurors, who were seated classroom-style in front of the witness stand, and flopped into the chair.

After he gave his name and took the oath, Clark asked him, “Mr. Kaelin, were you acquainted with a woman by the name of Nicole Simpson?”

“On the advice of my attorney,” Kaelin stated, “I must respectfully decline to answer and assert my constitutional right to remain silent.”

“You seem to be reading from a piece of yellow paper, and there is some writing on that paper,” the prosecutor said. As Clark would soon know only too well, Kaelin could never have uttered such a cogent sentence if left to his own devices. Kaelin admitted that he had been reading his answer.

Clark tried again, asking, “On the night of June 12, 1994, were you in the company of Mr. Orenthal James Simpson?” (Among prosecutors, it would become sort of a trope, even a badge of honor, to use Simpson’s ungainly full name, no matter how stilted it made them sound.)

Kaelin kept reading the same response to her questions, and Clark soon excused him to speak with Genego, who was waiting outside. After a moment, Kaelin returned to the grand-jury room and repeated his refusal to answer questions.

Then, at Clark’s direction, the foreperson of the grand jury read a stern message to Kaelin: “Mr. Kaelin, I advise you that this grand jury is a lawfully constituted legal body and that your refusal, without legal cause, to answer questions before this grand jury does constitute contempt and will subject you to imprisonment pursuant to the laws of this state.” (Recalling the scene for the man who later wrote his “instant” biography, Kaelin described his reaction in his own terms: “It sounded like something out of an old Dragnet rerun on Nickelodeon.”) When Kaelin still wouldn’t answer, the foreperson officially found him in contempt of the grand jury and ordered the bewildered houseguest to the courtroom of Judge Stephen Czuleger.

Before Judge Czuleger, the prosecutors erupted in fury and indignation. Kaelin, they said, was not a suspect in the case but only a witness; therefore, he had no right to invoke the Fifth Amendment privilege against self-incrimination. Genego replied that Kaelin certainly had been treated like a suspect that morning, and it was undeniable that Kaelin had received unusually rough treatment for a mere grand-jury witness. Under those circumstances, Genego argued, Kaelin had every right to refuse to answer. A thoughtful judge, Czuleger seemed put off by the prosecutors’ strong-arm tactics. What was more, even though Czuleger (like the rest of the world) had never heard of Kato Kaelin at that point, his reaction to Kaelin’s puppy-dog persona offered a preview of the response of the public at large. What was the harm, Czuleger asked Conn, in giving Kaelin a weekend to talk to his lawyer, “putting aside he may flee the country and be in Brazil by morning.” Everyone in the courtroom laughed at the ridiculous prospect of Kato Kaelin on the run.

Conn had to admit that the weekend probably wouldn’t make much difference, and Czuleger put off the confrontation until Monday, June 20. “Trust me,” the judge, momentarily stern, told Kaelin. “Don’t go anywhere. You wouldn’t like the alternative. Be here Monday at 8:30 in the morning.” Czuleger then moved to recess the hearing-but not before he learned from his bailiff, and told the astonished audience, that O.J. Simpson had been located and was at that moment part of a televised car chase across the Los Angeles freeways.

The wisdom of Judge Czuleger’s decision was proven on Monday morning, when Kaelin agreed to testify without invoking his Fifth Amendment right. The weekend-long delay had defused the legal confrontation, but the rocky introduction set the tone for Kaelin’s relationship with the district attorney’s office. When he took the oath and answered Clark’s questions, she found that the core of his story remained largely unchanged from the moment he had first told it to the detectives at Rockingham just hours after the murders. Kaelin told the grand jury, as he had told the detectives, that on the night of the murders he and O.J. had gone to McDonald’s for hamburgers shortly after 9:00 and returned at about 9:40 P.M. (The grand jury also marked the on-the-record debut of Kaelin’s singular diction. He said, for example, that at McDonald’s he had ordered a “McGrilled chicken sandwich deal.”) At about 10:45 P.M., while he was talking on the telephone in his room, Kaelin said, he heard the three loud thumps on his wall. Shortly before 11:00, Kaelin said, he had helped Simpson put his bags in the limousine for the trip to the airport.

It was, for the most part, an incriminating story. Most important, it established that Simpson’s whereabouts were unaccounted for at the time the murders took place. Kaelin gave O.J. no alibi. His testimony also established that someone, possibly Simpson, had been rummaging around in the precise location where the bloody glove was found just a few hours later. Some details in Kaelin’s recounting did favor Simpson. For one thing, as Kato described it, Simpson’s demeanor during their trip to McDonald’s hardly seemed that of a man who was moments away from slaughtering his ex-wife. Still, that kind of nuance might have evolved in the prosecution’s favor if Kaelin had come to trust the prosecutors and confront the truth about his benefactor.

One way of drawing a fuller story out of Kaelin might have been to stroke him, accommodate him, and try to persuade him that the prosecutors would stand by him and, just as important, that he had nothing to fear from O.J. and his friends. But that kind of approach wasn’t Clark’s style; she relied far more on the stick than the carrot. Clark and Conn had decided to put the fear of God into Kaelin by rushing him before the grand jury. They succeeded only in alienating him.

Another grand-jury witness was Jill Shively. If the glamour of O.J. and Nicole’s lives represented one archetype of Los Angeles culture, the reality of Shively’s represented another-a more common, if less celebrated, saga of the city.

Though the great migration of white midwesterners that created modern Los Angeles had slowed by the 1970s, it never entirely stopped. Jill Shively’s newly divorced mother, Nancy, arrived from Indiana in 1979 and settled in Santa Monica. Nancy Shively worked as a medical transcriber, and the family struggled to maintain a middle-class existence. At the age of thirty-two, in 1994, Jill found herself working intermittent hours in a film-supply business and living in a tiny one-bedroom apartment. On most nights, Jill cared for a young niece, the daughter of Jill’s sister, whose personal problems left her unable to act as a parent. Diminutive, athletic, long on schemes for success but short on good luck and results, Shively lived one mile and a world away from Nicole Brown Simpson’s condominium on Bundy Drive.

On June 12, Shively had been battling the flu all day and had eaten nothing. At around 10:45 that night, she decided to drive to San Vicente Boulevard to a favorite salad bar. Gunning her Volkswagen to beat the store’s 11:00 closing time, she raced along San Vicente, going east. As she approached the intersection where Bundy crosses San Vicente, Shively accelerated to make the light. A large white vehicle heading north on Bundy raced in front of her against the light. Shively slammed on her brakes, as did the white car, which then ran up partially on San Vicente’s raised center median. A third car, a gray Nissan heading west on San Vicente, also stopped suddenly, trying like Shively to avoid the white car that had raced in front of them.

Briefly, the three cars were frozen next to one another. Then Shively noticed that the driver of the white car began honking his horn and screaming-“Move your damn car! Move it! Move it!”-for the driver heading west on San Vicente to let him pass. Shively noticed that the driver of the white car was black, and on second glance, she thought she recognized him. Her mind raced.

That’s… that’s… Marcus Allen!

Then she heard him scream again, and she realized that she recognized the voice. It’s wasn’t Marcus Allen; it was O.J. Simpson. The stunned driver of the gray Nissan was finally gathering his wits to move on. At last he did, and Simpson peeled off on Bundy, but not before Shively had a chance to look at and remember the license plate of the white car: 3CZW788.

Shively wrote off the incident and continued her search for salad. Her car lacked a radio, so when she went to work the next morning, she had no idea about the murders until her mother called her at her job. “Did you hear that Nicole Simpson was murdered last night?” Nancy Shively asked.

Jill said she hadn’t. “That’s weird,” she went on. “O.J. nearly ran me down last night.”

Later that day Shively called the police, and a pair of detectives came to interview her the following day. On Saturday, June 18, a detective came to her home with a grand-jury subpoena ordering her to testify on Tuesday, June 21. By Sunday, June 19, her name had leaked out as a witness and reporters were banging on her apartment door. The next morning, she called Patty Jo Fairbanks, whose name she had been given as a witness coordinator for the district attorney’s office. Shively later recalled Fairbanks saying that she could give no interviews until after she had testified in front of the grand jury; Fairbanks remembered telling her to speak to no one at all. In any event, on Monday, June 20, Shively decided to give an interview. She went to the Paramount lot in Hollywood, found her way to the set of Hard Copy, and sat down to make a little money.

Long-established policies at virtually all outlets of the mainstream press, from newspapers to television networks, categorically prohibit journalists from paying interview subjects. For many years, only the operators on the disreputable fringe of the print world, the supermarket tabloids, paid for news. But thanks to two seemingly unrelated phenomena, the “cash-for-trash” business exploded in the early 1990s.

The first was the birth of a new and successful genre of television program, the tabloid, or infotainment, program, which parlayed celebrity news and scandal into tremendous ratings. A Current Affair (Fox), Inside Edition (King World), and Hard Copy (Paramount) boomed in popularity. Produced by entertainment companies with no history of journalistic enterprise or ethics, the television tabloids had the money to buy stories and did so with abandon. The supermarket tabloids, led by the National Enquirer, which has a weekly readership of nearly 20 million, had no trouble keeping pace.

The second factor was a decision of the United States Supreme Court. The so-called Son of Sam law was passed by the New York state legislature in 1977 to prevent David Berkowitz (who sent notes to the police signed “Son of Sam”) from capitalizing on his notoriety as a serial killer. The measure made it illegal for criminals to earn income from selling stories about their misdeeds. In 1991, however, the Supreme Court ruled that the law violated the First Amendment. The tabloid industry saw the Supreme Court’s decision as a vindication of its ways.

Because witnesses who take money from tabloids automatically raise questions about their credibility-and because defense attorneys can successfully vilify those witnesses on cross-examination-the practice of buying and selling interviews seriously threatens prosecutors’ abilities to win high-profile cases. In the William Kennedy Smith rape trial, for example, defense attorney Roy Black skewered a critical government witness who had sold an interview to A Current Affair. Ironically, the print and television tabloids that fuel this industry have been widely denounced for their supposed rush to convict celebrity defendants before their trials; in his early press conferences, Robert Shapiro often complained about their unfairness to O.J. Simpson. As it happens, though, the tabloids can so taint government witnesses that tabloid infotainment may actually be the greatest friend a famous defendant can have.

In the Simpson case, the LAPD addressed its cash-for-trash problem in a little-noticed coda to the first public announcement of the murders. After giving the basic facts about the case, such as the names of the victims and the place where the bodies were found, Commander Gascon, the police spokesman, issued a plea to the news media. “Over the next few days, detectives will continue to interview possible witnesses and gather and analyze evidence,” Gascon said on June 13. “Detectives are requesting that the media not attempt to contact potential witnesses in this case, as those contacts may delay and negatively impact the course of this investigation. I need to stress that. It’s critically important.”

If the tabloids heard Gascon’s plea, it didn’t change their behavior. They offered cash to virtually every major participant (and many fringe figures) in the Simpson case. One night shortly after the murders, Mike Walker, the gossip columnist for the National Enquirer, announced on Larry King Live that his paper was offering Al Cowlings $ 1 million for an interview-and Walker held up a cardboard check in that amount to clarify his point. For the interview that she gave Hard Copy on June 20, Shively got a relatively small amount-$5,000. Displaying her subpoena for the cameras at Paramount, Shively adapted nicely to the tabloid idiom in her interview, declaring that Simpson looked “like a madman gone mad, insane.” The producers at Hard Copy even gave her a little extra present. They said a friend of theirs at the supermarket tabloid Star would give her another $2,600 if she would allow him to use the text of the Hard Copy interview and pretend that it had actually been with him. Shively said sure. Then the following morning, June 21, Shively presented herself downtown, and Marcia Clark walked her through her story for the grand jury.

That night, Hard Copy ran the interview with Shively. Clark was apoplectic when she learned of it. In a brief conversation with Shively just before she had testified in the grand jury, Clark and Conn had asked her if she had spoken to anyone about the subject matter of her testimony. Just her mother, Shively had replied. Now it was clear that she had spoken to Hard Copy as well. Clark demanded that Shively return to the courthouse to explain herself.

Shively was terrified, and she brought her mother with her to the Criminal Courts Building on June 22. They waited nearly all day for an audience with Clark. When it came, Clark lashed out at her: “You lied to us! How could you?”

Shively tried to explain that she thought Clark and Conn had asked her who was the first person she told about the incident. That had been her mother. Shively said she didn’t realize they wanted to know all of the people she had told.

Clark scoffed. “We’ve got plenty of circumstantial evidence,” she said. “We don’t need you. We’re going to make an example out of you.”

Clark ordered her to return the next day, June 23, to explain herself before the grand jury. That night, Shively looked in the Yellow Pages for a lawyer on call twenty-four hours a day so that she would have someone to protect her from Clark’s wrath in the morning.

Accompanied by her lawyer, Shively returned to Clark’s office for another tongue-lashing. They then trooped in silence to the grand-jury room. There, Clark asked Shively why she had misled the prosecutors in the interview before her grand-jury appearance.

Shively explained again that she thought they had only wanted to know the first person she had told. “I was nervous and hadn’t slept all week, and wasn’t really thinking,” Shively said. “I wasn’t trying to hide anything, because I knew it was being aired the next day.”

Shively was ushered out after only a few minutes, and then Marcia Clark asked for a moment to address the grand jury. “Ladies and gentlemen of this jury,” she said. “Because it is our duty as prosecutors to present only that evidence in which we are 110 percent confident as to its truthfulness and reliability, I must now ask you to completely disregard the statements given and the testimony given by Jill Shively in this case.”

Jill Shively presented a kind of problem that a midlevel prosecutor like Clark would never have encountered before. (To be sure, Hard Copy had never come calling on the witnesses in any of Clark’s earlier cases.) In part, Clark’s denunciation of Shively to the grand jury reflected a high degree of prosecutorial ethics, because prosecutors should never present evidence they find less than fully believable. But there was a kind of self-defeating sanctimony in Clark’s posture as well. Prosecutors deal all the time with witnesses who take a while to tell the full truth. Some lie far more extensively than Shively did before they get around to a credible story. And Shively’s “lie” seems more pathetic than evil; as Shively herself pointed out, she could not have expected that the prosecutors were going to miss the fact that she had spoken to a national television program. But Clark thought she could summarily dispose of Shively. A simple and unadorned request to the grand jury to disregard Shively’s testimony would have more than satisfied Clark’s ethical obligations. Instead, in a fit of pique, Clark denounced Shively in terms that made her permanently useless to the government.

But Marcia Clark felt she could afford it. After all, the prosecution had plenty of witnesses.

If Robert Shapiro had one great strength as a lawyer, it was that he usually knew what he didn’t know. In the first few days after the murders, Shapiro bought himself an enormous amount of help-high-priced experts in their respective fields. He didn’t know much about autopsies and crime scenes, so he called Michael Baden and Henry Lee. He knew nothing about DNA, so he recruited two lawyers from New York, Barry Scheck and Peter Neufeld. Shapiro had not gone to trial on many complex crimes-and he had never tried a murder-so he summoned his old friend F. Lee Bailey. On the day Shapiro was hired, he called Bailey and said, “I need you to help me hold on to this case.” Shapiro knew that he needed Alan Dershowitz as well.

Of course, Shapiro didn’t get to Dershowitz first. Whenever any legal or criminal proceeding makes news, talk-show bookers instantly summon the Harvard Law School professor for analysis, and Dershowitz gladly delivers the goods in well-rounded sound bites. Alan Dershowitz has an enviable life-a prestigious professorship, lucrative deals for books and speeches, a full plate of wealthy clients eager to pay him for legal work-and yet he seemingly will appear on any program and talk about anything. His lust for publicity has a manic quality, as if the bookish yeshiva boy from Brooklyn still cannot believe that others care what he thinks. So when the calls came from the media in the immediate aftermath of the murders in Brentwood, Dershowitz was, as usual, available.

Besides, the timing was propitious. Dershowitz was just completing a book called The Abuse Excuse-and Other Cop-Outs, Sob Stories, and Evasions of Responsibility. In it, he wrote that a whole series of excuses-such as the “battered-woman syndrome,” the “abused-child syndrome,” and the like-were “quickly becoming a license to kill.” Some of these excuses, Dershowitz wrote with disdain, reflected “politically correct” sentiments that sought to apply different criteria of culpability to people from disadvantaged groups. “In effect,” he wrote, “these abuse excuse defenses, by emphasizing historical discrimination suffered by particular groups, seek to introduce some degree of affirmative action into our criminal-justice system.” The Simpson case seemed to fit right in. On Monday, June 20, 1994-the day the haggard Simpson mumbled his not-guilty plea in court-Dershowitz expounded on this thesis when he appeared in his legal-expert persona on public television’s Charlie Rose. On the broadcast, Dershowitz speculated that the Simpson case “may end up not with a bang but a whimper. I mean, this may end up in something like a hung jury. It may end up in a plea bargain.” Indeed, Dershowitz went on, the Simpson case might wind up having sinister implications. “It may end up with a terrible message. It may end up with a Menendez- or Bobbitt-type verdict, which will send a message out, ‘Gee, you can get away with this kind of stuff.’ ”

Dershowitz’s comments irritated Shapiro when they got back to him. He told a friend, “How can we shut that guy up?” After a pause, he said, half jokingly, “I guess we’ll have to hire him.” And the day after Dershowitz appeared on Charlie Rose, Robert Shapiro called Alan Dershowitz and invited him to join the defense team. Dershowitz dutifully informed Shapiro that he had made some less than supportive comments in the media. Shapiro didn’t care. Alan, he said, we need you.

No law, or even any ethical rule, prevented Dershowitz from accepting the assignment. (Shamelessness is a moral, rather than a legal, concept.) As Dershowitz himself cheerfully noted in his memoir The Best Defense, “Almost all of my own clients have been guilty.” In the Simpson case, Dershowitz was an observer one day, an advocate the next-a shift that reflected, as Anthony Kronman, the dean of Yale Law School, once aptly put it, “the indifference to truth that all advocacy entails.” Lawyers live by such distinctions, even as they fuel public cynicism about their profession. (Kronman himself later changed his mind about his own mordant observation.)

For Dershowitz, though, the call from Shapiro did not come completely out of the blue. The two lawyers had worked together before. And although Dershowitz sometimes comes across as a preening clown on television, he is in fact a superb defense attorney, who specializes in identifying and exploiting the weaknesses in the government’s case. Dershowitz had played a behind-the-scenes role in the defense of Shapiro client Christian Brando, who eventually pleaded guilty to killing his sister’s boyfriend. Shapiro now told Dershowitz that he had also hired a lawyer who had worked with them on the Brando case: Gerald Uelman, who was, like Dershowitz, a law school professor but was in many ways his opposite. Soft-spoken, with pale skin and white hair that seemed at times to render him nearly invisible, Uelman served as dean of Santa Clara University law school, in San Jose. Although the two professors differed in style and temperament, they shared an aggressive philosophy about how to defend a criminal case. Above all, they believed that the defense had to stay on the offensive-challenging, protesting, complaining, and endeavoring in every respect to create chaos in the prosecution camp.

Dershowitz and Uelman discovered their first opportunity to do this in the extraordinary onslaught of publicity the Simpson case was receiving. It is a truism among judges in criminal cases that pretrial publicity hurts the defendant, and much incriminating information about Simpson did come out immediately after the murders. However, as the Simpson case illustrated so dramatically, pretrial publicity can hurt the government’s case as well. Simpson’s lawyers knew they could portray their client as the helpless victim of a publicity-seeking prosecutor and an irresponsible news media. The question was how to turn that sympathetic picture of the client to their legal advantage.

Simpson’s lawyers hit on the idea of challenging the grand jury. They would allege that the pretrial publicity had so poisoned the minds of the grand jurors that they would have to be recused en masse and the case would have to be sent to the June 30 preliminary hearing after all. There was only one problem with this theory: Apparently, no grand jury in history had ever been disbanded for this reason. Still, Dershowitz and Uelman figured, it didn’t hurt to take a shot. Besides, on Wednesday, June 22, the government presented the defense with another unintentional gift. On that day, the Los Angeles City Attorney’s Office, acting on media requests, released the audiotape of Nicole Brown Simpson’s heartrending telephone call to 911 on October 25, 1993. “Can you get someone over here now? He’s back. Please,” the trembling voice of Nicole said on a tape that was played repeatedly on television and radio. “He’s O.J. Simpson. I think you know his record… He’s going to beat the shit out of me.” While the tape did contribute to a poisoning of attitudes against Simpson, its release also added to the defense’s claim of excessive pretrial publicity.

So, with Uelman working out of San Jose and Dershowitz in Jerusalem on unrelated business, the lawyers put together the first of the 393 legal motions that would be filed in the Simpson case. They called it an “Emergency Motion for Voir Dire of Grand Jurors and Determination of Prejudice from Improper Pretrial Publicity.” The most the defense lawyers really hoped for was that a judge would agree to voir dire-that is, question-each of the jurors and then determine the impact of the publicity on them. Almost as an afterthought, they threw in the completely unprecedented request that the grand jury be disbanded. Though it meant that Dershowitz had to run up a telephone bill of $800 at the King David Hotel, the defense was able to file its indignant brief on the morning of Friday, June 24. In it, the defense urged the court to take “certain essential steps to alleviate the prejudicial impact of the improper release and massive publicity given to inadmissible evidence in this case [and] prejudicial and improper expressions of personal opinions by prosecutors.” Listing the calumnies that had been heaped on their client by Garcetti and Clark, the defense lawyers wrote, “The District Attorney speculated that the ex-football star eventually might admit killing his ex-wife and her friend but would claim a defense similar to that of the Menendez brothers.” In another example, the defense noted with dismay a statement from Garcetti quoted in the Los Angeles Times of June 19: “It wouldn’t surprise me if at some point we go from, ‘I didn’t do it,’ to ‘I did it, but I’m not responsible.’ ” (Meanwhile, of course, Dershowitz had said practically word for word the same thing on national television on June 20!)

The defense motion had the intended effect of throwing the prosecutors off their stride. The release of the tapes had already complicated their task. Concerned about his base in the black community, Garcetti didn’t want it to look like he was treating Simpson unfairly, so the district attorney publicly criticized the city attorney’s office for releasing the 911 tapes in the middle of his office’s investigation. (The district attorney, who prosecutes felonies, and city attorney, who handles misdemeanors and civil matters, are elected separately and have separate staffs.) The airing of the tapes also created legal problems for the prosecutors. After the 911 tapes had been released on June 22, several people around the courthouse overheard some grand jurors talking about them, although the tapes had not been presented as evidence to the grand jury. Broadcasts of the tapes were so widespread that they were, of course, nearly impossible to avoid. The prosecutors realized they might have an ethical obligation to tell a judge about what the jurors had said. The judge, in turn, might want to question the jurors individually or let defense lawyers interrogate them. That might take days-and reveal new complications that the defense could exploit. In addition, going forward with a tainted grand jury might infect the case with a legal error that could jeopardize a conviction on appeal. Seeing the defense motion on the morning of June 24, the prosecutors thought it might make more sense simply to give up on the grand jury and go forward with the preliminary hearing after all. Garcetti was still weighing his options when, in a brief court hearing that Friday morning, June 24, Marcia Clark denied that prosecutors had exploited the publicity in the case and instead accused Shapiro of doing just that.

In reaction to the defense motion and the prosecutors’ concerns, Cecil Mills, the supervising judge of the Los Angeles Superior Court, conducted his own brief investigation and learned that several jurors had indeed heard the 911 tapes. The district attorney’s office decided to join in the motion to disband the grand jury. In a terse ruling from the bench, Judge Mills said, “Given the request of both Counsel for Mr. Simpson and the Los Angeles County District Attorney… this Court recuses the 1993-94 Grand Jury from further consideration of this matter.”

In a news conference after Mills’s ruling, Shapiro did not try to restrain his glee. “We are very pleased the judge agreed with our position,” he said in a packed hallway of the Criminal Courts Building. “We look forward to finally presenting this evidence in a public courtroom… to hearing live testimony under oath from the witnesses.” There would be a preliminary hearing after all.

Marcia Clark had only four days to put it together. During the truncated grand-jury proceedings, the prosecutors had learned that Simpson had recently bought a large knife at Ross Cutlery, a store in downtown Los Angeles. A preliminary comparison with the autopsy findings suggested that Simpson’s recent purchase might be the murder weapon. So on Tuesday, June 28, Clark obtained a warrant to allow the police to search Simpson’s home again, this time for the knife. Cops turned the place upside down but came up empty-handed.

The next day, in the L.A. county jail, Gerald Uelman showed O.J. Simpson the police affidavit underlying the June 28 search. “Where’s the knife?” lawyer asked client.

After receiving instructions from Simpson, Uelman returned to Rockingham and went upstairs to the master bedroom, where a set of shelves was set behind mirrored doors. Uelman opened the doors and found, in a box, the knife that O.J. Simpson had purchased just a few weeks earlier. It appeared pristine-as Simpson had promised Uelman it would be. Apparently, the police had never looked behind the mirrored doors.

The discovery called to the law professor’s mind an old story in legal circles. As the tale goes, a lawyer named Harry Levine is sitting in his office when the phone rings. A voice on the phone says, “Mr. Levine, I just shot my wife. I’ve got the gun in my hands. What should I do?”

Levine weighs his options. At last he replies, “Oh! You must be looking for Harry Levine the lawyer!”-and hangs up.

Much as the option of throwing up his hands looked appealing at that moment, Gerald Uelman had to decide what to do. It was a profound ethical dilemma. Here was a piece of evidence the prosecution clearly regarded as important. If Uelman were to touch the knife, he would immediately become a witness in the case; and in light of the cops’ embarrassing failure to find the knife, they might accuse Uelman of planting or hiding it. But doing nothing-the “Levine option,” as it were-didn’t seem like the right thing, either. The knife’s pristine appearance seemed to reflect favorably on Simpson, so the defense would want some way to safeguard its condition. How was Uelman supposed to preserve the knife as evidence without touching it himself? And how could he avoid tipping the defense’s hand on this subject to the prosecution?

Uelman kept his options open by simply closing the mirrored door. A night of feverish consultations among the defense lawyers yielded a plan.

The first thing the following morning, Thursday, June 30-which also happened to be the first day of the preliminary hearing-Uelman and Shapiro went in secret to the chambers of Judge Lance Ito of the superior court. (They chose Ito because he was, at that time, the judge who handled all miscellaneous criminal matters.) The lawyers asked Ito to appoint a “special master”-that is, a neutral arbitrator-to go to O.J. Simpson’s house, note the knife’s condition, and remove it to the custody of the court. Ito agreed, and that very morning asked retired superior court judge Delbert Wong to go to Rockingham and pick up the knife. Wong did as asked and brought to Ito a heavily taped envelope with the knife in it. No one-not the public and not the prosecutors-was any the wiser.

Uelman and Shapiro were delighted. From Ito’s chambers, they raced to the courtroom of Judge Kathleen Kennedy-Powell for the opening moments of the preliminary hearing. The atmosphere there did not match Shapiro’s cheery mood, so he made a wan effort to break the ice as soon as the judge appeared on the bench.

“This is the quietest courtroom I’ve ever been in, Your Honor,” Shapiro said.

The silence, of course, came from the tension. It had been just eighteen days since the murders, but already the case had generated extraordinary media attention. Now, for the first time, all the principals in the case, including the families of the victims, were arrayed in one place under the scrutiny of a live national television audience: All three networks, as well as CNN and Court TV, had preempted regular programming to broadcast Simpson’s preliminary hearing live.

“Good morning,” said Judge Kennedy-Powell, attempting to conduct business as usual. “Now, there are a number of matters on calendar today. I think there is one matter that can be resolved in fairly short order, and that relates to… an order for a hair sample.”

Police had discovered hairs, apparently of African-American origin, inside the knit cap found at the murder scene. Prosecutors wanted to obtain hair samples from Simpson so they could be compared with the hairs in the cap. It was, as the judge suggested, a routine matter. The courts have held for many years that a defendant does not have a Fifth Amendment right to withhold a hair sample.

But, as would become the pattern in the case, this was not treated as routine. The first issue in court would give the prosecution a flavor of the defense it would be facing in this trial. Kennedy-Powell said that the defense was not objecting to providing a hair sample as long as it was just that-a single hair. Prosecutors objected.

“Ms. Clark, how much hair do the People need?” the judge asked.

Clark was indignant. “Well, Your Honor, hair samples-as I’m sure the defense must be aware-in order to be effectively compared with an evidence sample recovered from a crime scene, have to be taken from each area of the suspect’s head, and that means that a minimum of 5 to 10 hairs from each area, which usually amounts to about 100 hairs.

“Any scientist, no matter how inexperienced, is aware of that fact,” Clark declared. “You cannot do an effective comparison between a known standard and an evidence standard without that size of sample.”

“So you’re asking for 100 hairs?”

Clark exhaled. “We’re asking for as many hairs as the criminalist or expert determines is necessary to effectively compare the standard hairs… And I’ve never seen a court attempt to restrict that.”

Kennedy-Powell asked Shapiro for his view.

“Your Honor,” Shapiro said, “according to Dr. Henry Lee, our chief criminalist, who is the head of the department of criminology in Connecticut, he tells us one to three hairs are sufficient.” Shapiro-and Lee-were being cute. Only a few hairs are necessary for DNA testing. But many more hairs are needed for conventional microscopic analysis, which the prosecution also wanted to do.

Characteristically, Shapiro was more muted than Clark, but he did not skimp on indignation, either. “I think 100 hairs is unduly invasive, makes the inventorying of the hairs a very, very difficult task, and certainly allows for the possibility of commingling of samples, which could contaminate any test. So we would ask for a hearing on this.”

“This is what I’m prepared to do at this point in time,” the judge said, “that is, to order no more than ten hairs at this point.”

Clark couldn’t believe it. The collection of hair samples was a standard, invariably uncontested matter of criminal procedure. Kennedy-Powell had reacted to the issue with great caution, to avoid making a very public mistake. In the extremely unlikely event that a defendant even contested the hair issue in a run-of-the-mill case, most judges would have ordered the hair samples without a second thought. Clark thought ten hairs would probably be sufficient, but the ever-aggressive prosecutor wanted to put the defense-and the judge-in their place. Rather than leave the issue alone, she fought back: If they want a hearing, we’ll give them a hearing. Michele Kestler, the assistant director of the LAPD crime lab, happened to be in court to offer testimony on another matter. Clark figured Kestler could handle the hair issue as well, and so she called Kestler to the stand that very first morning.

On the stand, Kestler dutifully said that when she heard the defense wanted to limit the sample to one hair, “I was shocked at best… I said, ‘You’ve got to be kidding.’ ” But Shapiro knew what to do with her on cross-examination. He established that Kestler had worked most recently as a bureaucrat rather than as a scientist and that her academic qualifications were rather meager-along the lines of taking in-house LAPD training courses like “How to Turn Your Work Group into a Winning Team.”

“Are you familiar with a gentleman by the name of Dr. Henry Lee?” Shapiro asked.

Kestler was.

“Have you seen his fifty-page curriculum vitae recently?”

Kestler, it appeared, had no great expertise on hair samples. At the lunch break, Clark scrambled to find a certain criminalistics textbook written by Dr. Lee, that suggested that about 40 hairs were needed for proper microscopic testing. That proved enough for the judge, and after several hours of this literal and figurative exercise in hairsplitting, Kennedy-Powell said the prosecution could have “at least 40 but no more than 100 hairs.” After making her ruling, Kennedy-Powell asked Clark to call her first witness.

In addition to the public attention, the Simpson preliminary hearing was atypical in another way. As a result of a California voter initiative in 1990, prosecutors now had to present considerably less evidence than they once had in preliminary hearings. Under Proposition 115, as the law was known, prosecutors could (and usually did) present their cases in prelims primarily by using hearsay evidence. Many prelims involved the testimony of only a single police officer, who would explain what evidence had been collected and what witnesses had said. This kind of presentation insulated most government witnesses from cross-examination. But the D.A.’s office in the Simpson case decided not to conduct a “Prop 115” prelim. Displaying their characteristic concern for public relations-in this respect at the expense of the long-term prospects for their case-the prosecutors decided to call many of the actual witnesses instead of merely relying on hearsay. They felt it was important to show prospective jurors (and Garcetti’s constituency) just how much evidence they already had.

So the prosecution decided to start out with a bang. By this point, David Conn, Marcia Clark’s direct superior, was off the case, having returned to his primary assignment of leading the retrial of the Menendez brothers. In his place as coprosecutor with Clark, Garcetti had named Bill Hodgman. As director of the Bureau of Central Operations, the forty-one-year-old Hodgman served as one of the highest-ranking prosecutors in the office. (During Clark’s brief stint as an administrator, she had worked as Hodgman’s special assistant.) Cool where Clark was hot, calm where she was excitable, Hodgman served as a good foil for Clark, in Garcetti’s view. It was Hodgman who called the first witness to the stand in the prelim.

Allen Wattenberg and his brother operated one of the more unusual businesses in downtown Los Angeles. Ross Cutlery was nestled in a corner of the historic Bradbury Building, whose magnificent iron-and-glass interior courtyard has long served the city’s moviemakers, most famously in Ridley Scott’s dystopic meditation on the future of L.A., Blade Runner. A mere three blocks from the Criminal Courts Building, Ross Cutlery was surrounded mostly by Latino fast-food joints, evangelical churches, and discount clothing stores. On May 3, 1994, the sidewalk in front of Ross Cutlery served as the setting for a scene in a pilot for an NBC series, Frogman, starring O.J. Simpson. Allen Wattenberg testified that during a break in filming that day, Simpson had come into the store to browse among its hundreds of gleaming blades and scissors. Simpson chose a fifteen-inch folding lock-blade knife with a handle carved from deer antlers. A few days before the hearing, LAPD detectives had bought an identical model from Ross Cutlery, and Hodgman displayed the sinister-looking item on a board for the judge (and, of course, the television camera). Simpson had paid the $81.17 price with a $100 bill. And then, providing just the malevolent touch prosecutors love, Wattenberg added that even though the knife was brand-new, Simpson had asked for it to be sharpened before he took it home.

In private, Shapiro and Uelman laughed. The prosecutors were using the Ross Cutlery witness to insinuate that the knife Simpson purchased on May 3 was the murder weapon. But the defense lawyers had actually seen the knife-as the government had not-and they knew that it appeared to be in pristine condition. The prosecutors got what they wanted: large and sinister photographs of the knife in virtually every newspaper in America. But as would happen so often in the case, the quest for a public relations advantage led the seekers only to folly. Yes, the knife looked evil, but when its purchase led nowhere, it was the prosecutors who looked bad.

There was another reason, besides high drama, that Hodgman and Clark wanted Wattenberg on the stand first. His employee Jose Camacho had testified in front of the grand jury the previous week. After he testified, Camacho had been approached by representatives of the National Enquirer seeking an interview for pay. Camacho had agreed. In the prelim, Hodgman asked Wattenberg, “Do you expect to profit in some manner from your brother and your employee Mr. Camacho having signed such an agreement?”

“Yes, I do,” Wattenberg replied.

“Would you explain to us, please, how you expect to profit?”

“My brother and I, being equal partners in the business, are going to divide this money up three ways. Mr. Camacho will receive one third, my brother one third, and myself one third.”

“What sum of money are we talking about?”

“The figure, I believe, is $12,500.”

The courtroom stirred. The prosecutors underwent a swift education. They discovered that their tabloid problem went beyond just Jill Shively. (And had they known at the outset that Shively was going to be only one of several witnesses paid by the tabloids, Clark might not have been so hasty to disown her in front of the grand jury.) With Wattenberg and Camacho, who followed his boss to the witness stand in the prelim, the prosecutors had figured that the mutually corroborating nature of their stories would trump the taint of tabloid money.

The saga of the Ross Cutlery knife had a bittersweet conclusion for the defense lawyers who had conjured the clever scheme to preserve it as evidence. After accepting the envelope containing the knife from neutral arbitrator Delbert Wong, Judge Lance Ito left on vacation and turned the package over to his boss, Cecil Mills, the chief superior court judge. Mills apparently failed to understand the secret nature of the defense lawyers’ negotiations with Ito. Mills simply turned the envelope over to Judge Kennedy-Powell, since she was presiding over the preliminary hearing. She, too, had no idea of the story behind the envelope, and brought it out on the bench with her when she received it. The media promptly dubbed it the “mystery envelope,” but given its size and the timing of the disclosure, Clark and Hodgman had no trouble figuring out what was inside. Shapiro and Uelman were disappointed that they could never spring the surprise of the envelope’s existence, but they did succeed in spooking the prosecutors into not mentioning the Ross Cutlery knife again; indeed, they would never attempt to identify a specific knife as the murder weapon. Eventually, the defense obtained the court’s permission to test the knife in the envelope. It was found to be in mint condition.

The publicity-infected grand jury… the tabloid-tainted “knife witnesses”… the hairsplitting saga of Michele Kestler… they all demonstrated that the defense was going to take the offensive at every opportunity. But they were merely a warm-up for the most important defense effort at the preliminary hearing. Shapiro and Uelman made their first attempt to have evidence in the case suppressed-an enterprise that reflected the defense’s dual legal and public relations priorities. For the judge, Uelman wanted to establish that the detectives’ first search of Simpson’s home violated the law. For the television cameras, Shapiro wanted to establish that O.J. Simpson was yet another black victim of the LAPD.

Customarily, police officers must obtain a search warrant before entering a suspect’s property. But under the expansive interpretations of government power that have been the rule in criminal law over the past two decades, courts have established several exceptions to the warrant requirement for searches. One of them holds that in an emergency-in “exigent circumstances”-the police can search without a warrant. The question for Judge Kennedy-Powell was whether there was any emergency that justified four detectives-Vannatter, Lange, Phillips, and Fuhrman-entering Simpson’s property in the early morning hours of June 13.

Vannatter first offered his justification for the search of Simpson’s property at the preliminary hearing, and it immediately drew a skeptical reaction. The detective insisted that Simpson was simply receiving the normal, courteous service the LAPD provides to any relative of a murder victim. Vannatter insisted that the detectives traveled from Bundy to Rockingham not because Simpson was a suspect in the murders but because they wanted to inform him of the murders and arrange for him to pick up his children. Once at O.J.’s home, Vannatter decided to have Fuhrman vault the wall because the blood they found near the handle of the Bronco made him think that Simpson might also be injured. As Vannatter testified at the preliminary hearing, “I was concerned that something had occurred there, whether I had a second murder scene, whether I had someone injured, whether I had someone that was stalking Mr. Simpson and his wife, whatever.”

When it came time to argue the illegal-search motion before Judge Kennedy-Powell, Uelman made his point nicely: “We are told that four detectives… all converged on the residence of Mr. Simpson simply for the purpose of informing him of the tragedy that had taken place at the Bundy location, a purpose that could just as easily have been accomplished by the placing of a telephone call.” Uelman pointed out that the drop of blood on the Bronco door “was just as consistent with a dripping taco or a driver with a hangnail.” No, Uelman insisted, the detectives’ purported concern for Simpson’s welfare merely served as a pretext for their desire to tie him to the murder of his ex-wife. Another factor made the police behavior even more suspect: One of the four detectives, Mark Fuhrman, had been to the house before to investigate an altercation between husband and wife; that history might certainly have made the officers view Simpson as a suspect.

After arguments from both sides, Kennedy-Powell faced a stark choice. According to the prosecution, the detectives’ behavior amounted to normal service to a bereaved citizen. According to the defense, the cops had acted like jackbooted thugs intent on violating a black man’s rights. The truth may well have been reflected in a third view-one that neither side would have wanted the judge, or the public, to believe. From the moment the murders were reported, the LAPD investigated this case with one eye fixed on the news media. As soon as Detective Phillips arrived on the scene, Commander Bushey ordered him to get over to Simpson’s home and make sure that O.J. didn’t find out about the murders from media reports. In Bushey’s view, that kind of insensitivity to a celebrity might have led to bad press for the LAPD. As Simpson’s own previous experience with the LAPD demonstrates, the police wanted nothing more than to coddle and please celebrities. The four detectives may simply have been as starstruck as the West L.A. patrol cops who used to lounge in O.J.’s pool.

As the circumstances of this case evolved, neither side could put its actions in their true light. The defense never wanted to acknowledge that the police viewed O.J. with anything other than hostility and suspicion. The police, in contrast, could not admit that instead of investigating the crime scene, they preferred to hobnob with a celebrity. Once the detectives entered O.J.’s property and found evidence linking him to the murders, Vannatter had to construct a believable pretext for why they had gone there in the first place. It worked in the short term: Judge Kennedy-Powell decided not to suppress the evidence, although the defense had the right to renew the motion in superior court.

This prosecution victory came at a price. The suppression motion shifted the public debate on the case, at least in part, from whether O.J. was guilty to whether the police had acted appropriately. And on the latter question, Shapiro made considerable progress. He was able to portray Vannatter as incompetent at best, sinister at worst. He showed that Vannatter’s search warrant affidavit contained significant errors: Simpson’s trip to Chicago had not been “unexpected,” and the substance on the Bronco door tested only presumptively, not positively, for the presence of blood. Although they failed to persuade the judge, the defense lawyers planted the idea with a pool of potential jurors that the police had a secret, nefarious agenda to get Simpson. That alone made the preliminary hearing worthwhile for the defense.

Simpson “lost” the prelim, of course. After five days of testimony spread on both sides of the July Fourth holiday weekend, Judge Kennedy-Powell ruled on July 8 that Simpson had to stand trial in superior court. But notwithstanding his reputation as a deal maker, Shapiro had shown the prosecutors that in this case he would be battling them every step of the way-for the audiences both inside and outside the courtroom. All the legal action, as well as an unending stream of well-wishers visiting him in jail, considerably buoyed the spirits of Shapiro’s client. By the time O.J. Simpson was arraigned in superior court following the prelim, he looked like O.J. Simpson again. With his tie and belt returned to him, he cut a dapper figure once more, and he greeted his supporters in the gallery with a wink and a thumbs-up. And when the judge asked him to repeat his plea to the charges of double murder, this time Simpson needed no prompting.

“Absolutely, 100 percent not guilty,” he said.