The Run of His Life

by Jeffrey Toobin

  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?” A
fter 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.