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.
The Run of His Life Page 16
