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 testimo
ny 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.
7. THE RACE CARD
The month after Simpson’s arrest went better than Shapiro had any reason to expect. The team of experts he had gathered was already beginning a meticulous examination of the prosecution’s case. The defense had eliminated the grand jury, and in the prelim had forced many important government witnesses to commit themselves under oath to their version of events. The police detectives had been put on the defensive about their conduct on the night of the murders. Much public support for O.J. remained, although his poll numbers were dipping daily. So the news was, up to a point, good.
Successful criminal defense attorneys permit themselves no illusions, and for all the good that came out of the prelim, the hearing forced Shapiro to face reality as well. Clark had concluded her presentation of the evidence to Judge Kennedy-Powell with the first public airing of the government’s blood evidence in the case. Since the first week, when Collin Yamauchi did the initial DNA tests, LAPD scientists had continued refining their results. For the purposes of the hearing, Clark thought it best to offer testimony only about conventional testing of the blood. Such testing offers somewhat less refined results than the best DNA tests, but Clark knew the judge would admit it into evidence without an evidentiary hearing. According to the tests disclosed at the preliminary hearing, the blood drops to the left of the shoe prints at Bundy matched Simpson’s—and that of only .43 percent of the population. In other words, 99.57 percent of the population could be excluded as sources of that blood.
It was devastating evidence. DNA tests, which were pending, would surely further incriminate Simpson. Even with the clever half steps he had taken so far, Shapiro could not win a simple jury referendum on whether his client had killed those two human beings. He knew, however, that he might win a referendum on a different subject—say, the racism of the Los Angeles Police Department.
The revelation that tabloid outlets had paid several prosecution witnesses for interviews led, indirectly, to my own involvement in the Simpson case. Around the time of the murders, I was completing a story for The New Yorker about “cash for trash.” My article focused almost entirely on how the investigation of Michael Jackson for sexual abuse of minors had been severely compromised because so many potential prosecution witnesses had been paid by the tabloids. I had a chance to add a few details about the tabloids’ role in the early days of the Simpson case—specifically, with regard to Jill Shively and the Ross Cutlery witnesses—and my story appeared on newsstands on Tuesday, July 5, 1994.
Later that week, unbeknownst to me at the time, the editor of The New Yorker, Tina Brown, asked the photographer Richard Avedon to travel to Los Angeles to take pictures of the defense and prosecution teams in the Simpson case. He and Susan Mercandetti, an editor at The New Yorker who often works with Avedon, spent the bulk of that week negotiating with Shapiro and his colleagues about how and when the defense-team photographs would be taken. The photo shoot of the prosecutors went off fairly smoothly, but dealing with Shapiro turned out to be a tense and frustrating experience for my colleagues. First the session was on, then it was off. Some people were included in the picture, and then they were not. The problem, as Shapiro explained it to Susan, was that the makeup of the defense team was in flux. (Though he did not say so at the time, the key issue was whether Johnnie Cochran would be joining the team.)
In the end, Shapiro proposed a compromise to Avedon and Mercandetti. Shapiro could not produce the entire defense team for a photograph, but he could produce … Shapiro. He would agree to sit for a solo portrait. He proposed this solution as if it had not been his hope all along, and Avedon ultimately did take Shapiro’s photograph. Shapiro knew that the process leading up to the portrait had been bumpy, to say the least, so he made a peace offering to the New Yorker team. He and his wife would take Avedon and Mercandetti to dinner at Eclipse, a trendy West Hollywood restaurant. Mercandetti, who had given birth to a daughter just a couple of months before, wanted nothing more than to go home to Washington, but she agreed to go to dinner.
At the restaurant Shapiro was in his glory. Producers and agents paid court at the banquette. Shapiro basked. Avedon, in an expansive mood, felt compelled to share with the table the fact that Susan was a nursing mother. On learning this news, Shapiro rose theatrically from his seat and spoke to Bernard Erpicum, the suave maître d’ of Eclipse. Moments later, Bernard reappeared with a package for Susan: a breast pump. Needless to say, Susan had not requested this gift, but she managed to mumble a stunned thank-you. She spent the rest of the meal mortified by Shapiro’s presumptuousness (however well intentioned), and contemplating a departure from the business altogether.
In any event, Tina Brown told me on Monday, July 11, that Shapiro had told Susan he might—might—agree to be interviewed by me about the case. Tina said I should make plans to go to Los Angeles the next morning. I made an airplane reservation, but I doubted anything would come of it. It didn’t sound like Shapiro had made much of a commitment to Susan, and I worried that I would just be stuck out there with nothing to write.
Tina had no patience for my agonizing. “Look,” she said. “There’s no story in New York. Just go.” I went.
I did have one possible lead. While I was still in New York, I had had a brief telephone conversation with Alan Dershowitz, who had by then joined Simpson’s defense team. Ten years earlier, I had taken Dershowitz’s first-year criminal law class at Harvard Law School, and we had spoken occasionally in subsequent years. In the course of a rambling and unfocused talk, Dershowitz went on a lengthy tirade about one of the detectives involved in the case. Knowing that in my previous career as a prosecutor I had been a junior member of the Iran-contra Independent Counsel’s staff, Dershowitz described the detective in question to me: “He sounds like Oliver North, looks like Oliver North, and lies like Oliver North.” I had thought little of the comment at the time, but reviewing my notes on the flight to California, I thought it might be worth pursuing the subject.
When I arrived late Tuesday, I found out there had been no progress in my getting an audience with Shapiro. So, on the morning of Wednesday, July 13, I decided to follow up on what I had heard from Dershowitz. There was, I was sure, no news in the fact that Dershowitz thought ill of the detective. But if the detective really did have a bad record, there was bound to be an official file. I began by calling the LAPD and asking if I could see the detective’s disciplinary record. I was not allowed to see anything in his file, but I was told there had been no formal adjudications against him. In short, no help. So I thought of another tack. From my days as a prosecutor, I knew that law enforcement officials were often sued for violating the civil rights of people they encountered. Perhaps there had been judgments against the detective. I decided I would go look.
But before I set out to find any records, I had to settle something. From my hotel room, I placed a call to David Kirkpatrick, a fact checker for The New Yorker. I asked him to check the spelling of the name Dershowitz mentioned.
“I have it in my notes as F-U-R-M-A-N, but that looks wrong to me,” I said.
Kirkpatrick set me straight: F-U-H-R-M-A-N.
Shortly after te
n, I parked near the long, low Los Angeles County Courthouse and made my way inside. About halfway down the corridor that runs the length of the main floor, I found the room where all cases are indexed on microform. I sat down to see if Mark Fuhrman had ever been sued.
No—not exactly. But the file did indicate that on August 24, 1983, Fuhrman himself had filed a lawsuit. And the defendant, curiously enough, was the City of Los Angeles Fire and Police Pension System. I showed the clerk the case number—C 465,544—and asked where I might find the paperwork. She told me that since it was so old, it would be in closed files in the archives, across Hill Street. Following her directions, I found myself staring at an elevator door that seemed to have been planted by itself near the side of the street. I stepped aboard the elevator and saw that there was, of course, nowhere to go but down. I rode it to the bottom.
There I discovered a ghostly subterranean Los Angeles, a network of cool, deserted corridors connecting the buildings above to one another. I followed the signs to the archives, which turned out to be housed in a vast, hangarlike chamber where everything, especially the employees, seemed to exist in a fluorescent haze. I filled out a form and then watched the clerk disappear into the endless stacks of forgotten papers. After less than ten minutes, she called my number and handed me a file about two inches thick. I took it to a table and began to study the contents.
The Run of His Life Page 17
