The Run of His Life

by Jeffrey Toobin

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

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

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

  What should we do? they asked themselves.

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

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

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

  “Shifty.”

  “Strident.”

  “Bitch.”

  “Bitch.”

  “Bitch.”

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

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

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

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

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

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

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

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

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

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

  “Number … thirty-two,” she said.

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

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

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

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

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

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

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

  “Yeah …” the man said.

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

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

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

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

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

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

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

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