The Run of His Life

by Jeffrey Toobin

  Cowan put Barens in touch with his client Michael Viner, a former record company executive, who had founded Dove, a company devoted principally to audiobooks, a decade earlier with his wife, the actress Deborah Raffin.

  Viner quickly signed Resnick to a six-figure advance and then looked for a collaborator for her. “I knew Mike Walker in passing, and I had seen him on Nightline and Larry King Live,” Viner explained. “And I sought him out.” Shortly after the contracts were signed, Viner sent Walker and Resnick to a ski chalet he owns in Stowe, Vermont, where he gave them three and a half weeks to produce a manuscript, in secrecy. The partnership had its strains. According to Walker, “At one point, I telephoned Viner and said, ‘Look, this woman is driving me nuts. She wants cappuccino.’ The next day, a cappuccino machine arrived by Federal Express.”

  Ultimately, however, the pair produced the manuscript of what became the book Nicole Brown Simpson: The Private Diary of a Life Interrupted. Resnick and Walker’s portrait presented Nicole as a brainless, sex-obsessed young woman whose banality was exceeded only by that of her ex-husband. For example, Nicole was portrayed as having an enthusiasm for fellatio with virtual strangers—a practice Resnick called the “Brentwood hello.” More significant as far as the trial was concerned, Resnick depicted Simpson as an insanely jealous former spouse who openly discussed cussed his thoughts of murdering Nicole. In the book, Resnick quoted Simpson as saying such things as “I can’t take this, Faye, I can’t take this. I mean it. I’ll kill that bitch.” (When I asked Resnick if she had any literary influences, she said, “I wasn’t inspired by a book to do this. The movie that inspired me was The Pelican Brief.”)

  The irony of Resnick’s book is that notwithstanding the accusations against O.J., it amounted to a generous gift to the defendant—and another example of the ill fortune of the prosecutors in this case. With her history of drug abuse, Resnick would have made a dicey prosecution witness in the best of circumstances. Still, if she had simply come forward after the murder and told her story to the police, the prosecutors probably would have called her to the stand. But the book made Resnick anathema to Clark and Hodgman; it represented the cash-for-trash problem writ large. Resnick undoubtedly had close ties to both O.J. and Nicole, and many, if not most, of her accusations had the ring of truth about them. But her conspicuous cashing in on her access to the principals would have given the defense too much ammunition in their cross-examination. Both during and after the trial, Resnick emerged as one of Simpson’s most vocal public accusers. But in fact her greed—and that of her publisher—made her an accomplice to O.J.’s acquittal.

  Aiming for maximum publicity, Viner and Resnick decided to release Private Diary in the middle of jury selection—on October 17. The news media reacted predictably, hyping Resnick’s accusations against Simpson. On the day it came out, Resnick’s book actually rated rather modestly on the Simpson-news Richter scale—bigger than my Fuhrman story but smaller, certainly, than the release of the tape of Nicole’s plaintive calls to 911. What made this story different was that it broke when Lance Ito was in charge of the case—and his reaction to it revealed much about him and the future course of the trial.

  Lance Ito thought a great deal about the news media. In a casual aside in court one day, Judge Ito remarked that he read five newspapers a day. In a later order to potential jurors about their television-watching habits, he specifically named, apparently off the top of his head, twenty-five different programs that were off limits, including Marilu, Leeza, Jenny Jones, Sally Jessy Raphaël, Oprah, Donahue, Geraldo, the news on MTV, and something called Press Box on a network called Prime Ticket. During his off hours, the judge wore a Today show baseball cap. In the middle of jury selection, Ito even gave a much-hyped interview to Tricia Toyota of KCBS television in Los Angeles. Though the judge said nothing sensational in his conversations with Toyota, Ito definitely complicated jurors’ efforts to avoid news coverage of the trial; he even had to dismiss some potential jurors because they had seen parts of his TV interview. Throughout the trial, Ito would often delay court sessions so that he could usher well-known media figures, like Geraldo Rivera, and the occasional movie star, into his chambers for private chats.

  As a result of Ito’s media obsession, the import of the Resnick book eluded him. The sensible course would have been to ignore Private Diary and, if the subject came up at all, to remind the jurors that they were to rely only on evidence presented in court. Like every other sensation in the case, Resnick would have faded, too. But Ito couldn’t leave Faye Resnick alone. On Tuesday morning, October 18—without even being asked by the parties—Ito suspended jury selection for forty-eight hours, he told the prospective jurors, because of “the publication of a book that has caused the Court great concerns about the ability of Mr. Simpson to get a fair trial. I need to look into the ramifications.” The judge even wrote to the heads of the major news networks and asked them to cancel interviews they had scheduled with Resnick. (CNN complied, but Connie Chung’s interview with Resnick on CBS went ahead.) Ito’s decision to stop jury selection prompted a predictable reaction. It fueled intense curiosity about the book in the public—and probably in the prospective jurors as well. Thanks to the push from Ito, Private Diary rocketed to the number one spot on the New York Times best-seller list, passing Pope John Paul II’s Crossing the Threshold of Hope. (As for Resnick’s purported desire to help the Simpson children, Dove donated $10,000 to the foundation Nicole’s parents established in her memory. This largesse amounted to about one cent for each of the one million or so copies of Private Diary that were sold.)

  Surprised as anyone by Ito’s reaction, the defense lawyers tried to use the Resnick crisis to provoke the judge into abandoning the case entirely. In a private conference in chambers on Wednesday morning, October 19, Shapiro made a rambling plea for Ito to do one or more of the following: dismiss all charges against Simpson; find Barens, Viner, and Dove Books guilty of obstruction of justice; sanction the district attorney’s office for failing to prevent publication of the book; and/or delay the trial for a year and release the defendant on bail. With the exception of the request for a continuance, all of Shapiro’s demands were absurd, but Ito patiently waited out Shapiro’s harangue. As for bail, Shapiro said Simpson’s attempt to flee on June 17 should not be held against him. “He has now had time to reflect upon this case, to reflect upon the evidence, and to be in a place where he wants to contest these charges in a court of law, and he wants to clear his name,” Shapiro said.

  Clark burned when she heard the defense lawyer complain about how his client was suffering from the pretrial publicity. “The defense has also leaked, as the Court is very well aware, in a very hideous and damaging way,” Clark said in characteristic sputtering indignation. “They have attempted to speak of Mark Fuhrman with the most vicious of allegations concerning racism, one of the most inflammatory charges that could possibly be made.… They have attempted to capitalize on it … again in the questionnaire with every question posed concerning the issue of racial issues and racism. The defendant is again playing a race card while denying they’re playing a race card, a very subtle game, but a very dangerous one for the People, because the officer who found the key piece of damaging evidence they have attempted to discredit in the most hideous of ways.”

  Shapiro hated being confronted with his own fingerprints on the racial controversies in the case. As always, he wanted things both ways. He wanted to use race to get Simpson acquitted, but he never wanted to admit that this was what he was doing. “Regarding the race issue,” Shapiro said, “I have stood before you, I have stood before the American public, and said race is not and will not be an issue in this case. I still stand by that. Credibility will be an issue in this case. Regarding the article in The New Yorker,” Shapiro went on, reacting to what Clark had said, “I was assured that it was going to be a photo essay … pictures only, no captions.” This was not true; I’d never said a word to Shapiro about how our interview might be illustr
ated. Shapiro went on before the judge: “Jeff Toobin’s article came out, and I was shocked to find my picture there by innuendo suggesting that I had somehow made derogatory remarks toward Detective Fuhrman. That is not true. In fact, a careful reading of that article as well as an analysis by journalists have the article saying that was a theory that may possibly be explored by the defense.”

  This monologue by Shapiro was more than Cochran could take. He had been on the case for about four months at this point, and thus far he had carefully deferred to Shapiro as lead counsel. But Shapiro’s desire to finesse the race issue—that is, to call Fuhrman a racist and then deny that race mattered in the case—appalled Cochran. Over these four months, Cochran had spent more time with Simpson than Shapiro had, and the black lawyer knew he would be taking a major, if not the lead, role when the trial began. Cochran wanted race front and center in the case, and he wanted to let Ito and the prosecutors know that he wasn’t about to apologize for it, either.

  “I just want to say something about this ‘race card,’ ” Cochran interjected, beginning a monologue that could have served as a personal credo. “I’ve been trying cases for a very long time, both civil and criminal throughout this country, and anybody who doesn’t believe that when you have a case like this, when you have a case of murder, that race plays a part in everything—We don’t introduce that.… There are racial issues. These jurors know it. Everybody knows it.… Race plays a part in everything in America.…

  “Every time people don’t believe race plays an issue, they wait until every few years until a major riot comes along and then people say, ‘Well, we are not going to take it anymore.’ And that’s very unfortunate, but that’s brought about from people who are totally insensitive to the problems of race in America and the underclass.”

  For Johnnie Cochran the connections between his millionaire client and “the problems of race in America and the underclass” were so obvious as not to require elaboration.

  But what was the point of all this conversation? Wasn’t this supposed to be a legal argument about a motion in a criminal case? It was—and yet Shapiro was carrying on about his controversies with the media, Clark was raging against Shapiro, and Cochran was discoursing about the black underclass. This was how Lance Ito conducted oral argument, as a sort of group therapy through collective stream of consciousness, a process in which lawyers could talk for as long as they wanted about whatever happened to pop into their heads.

  The subject the lawyers were nominally discussing was whether Simpson should be released on bail. As part of a subtle campaign to win Simpson’s confidence—in part by showing that he himself had confidence in Simpson—Cochran suggested that Ito speak to the defendant about whether he should be released on bail. So, seated on a chair in front of Ito’s desk, Simpson said, “Well, I feel I’ve been attacked here today. I’m an innocent man. I want to get to a jury. I want to get it over with as soon as I can.

  “I have two young kids out there. That’s my only concern. In the beginning, when they told me we should slow down, maybe we should slow down. I’ve read Mr. Gerry Spence’s book that you shouldn’t rush the jury. I’ve got two young kids out there that don’t have a mother. And I didn’t do it. I want to get to the trial as soon as I can get to trial. I’ve been told by everybody that I know, everybody that I spoke to, it is impossible for me to get a fair trial at this point. They told me maybe we should wait, maybe we should put it off. I can’t afford to be away from my kids any longer than I have to be away from my kids at this point.

  “Mrs. Clark—Miss Clark said that I was trying to run. Everyone knows that I called my father-in-law. I was not in a frame of mind—I admit that I was not in the right frame of mind at the time I was trying to get to my wife—”

  “Your Honor, excuse me,” Shapiro broke in, trying to stop his client’s increasingly meandering speech.

  “I was headed back home,” Simpson continued.

  Shapiro turned to O.J. “Mr. Simpson, I am telling you that I will not allow you to speak, and I will resign as your lawyer if you continue to do so.” This threat, contained in a transcript that the media-savvy Shapiro knew would be released to the public, was actually his way of taking at shot at his rival Howard Weitzman. Weitzman had been criticized for failing to make just this kind of effort to prevent O.J. from talking to the police on June 13. This time Simpson did stop talking.

  As he would so often, Ito backed away from the precipice. His fury about the Resnick book cooled, and he agreed to resume jury selection the following day. Ito, of course, did not release Simpson on bail. He tinkered with the process only by stopping the questioning of jurors in front of one another, a change he hoped would encourage candor.

  The Resnick controversy did provoke Ito into taking a hard line with the jurors on the question of their own habits of media consumption. After the Resnick book was published, the judge ordered the remaining candidates not to watch any television, read any newspapers or magazines, or set foot in any bookstore. Ito discharged one juror after she admitted to watching videotaped episodes of Beverly Hills 90210 and Melrose Place—no matter that her husband had first deleted all the commercials. A man was excused because he had watched cartoons with his grandson, as was a woman who watched a Barbara Stanwyck movie on television. With each winnowing, the jury pool grew ever more African-American and female.

  Finally, the day came when the parties were to exercise their peremptory challenges—which would allow them to remove jurors without having to offer reasons. Each side had twenty challenges. For the defense, Jo-Ellan Dimitrius consulted closely with Shapiro and Cochran; she had been in the courtroom for every moment of jury selection, and the lawyers huddled with her about each decision. Dimitrius had put the key findings from her research in a memorandum to the defense team, “General Considerations for Jury Selection.” Under the heading “Most Preferred Jurors,” Dimitrius listed the following attributes: “Young; Less Educated; Blue Collar; African-American; No Prior Jury Service; Lower Income.” (These were, predictably, the mirror image of Vinson’s findings.) Cochran and Shapiro hewed closely to her suggestions.

  Marcia Clark had allowed Vinson to sit in court for a single day of jury selection, after which she banished him; she never consulted him again. On December 8, the parties exercised the last of their challenges and accepted a panel of twelve jurors and twelve alternates. Their ethnic profile represented a stunning divergence from the group that had originally reported for duty—or, even more so, from Los Angeles County as a whole. Of the twenty-four jurors, there were fifteen African-Americans, six whites, and three Hispanics—in a county that is just 11 percent black.

  Over the many months to come, ten jurors would be replaced by alternates. (Curiously, no alternates were ever removed from the case.) Based on their answers to the questionnaires, the twelve jurors who ultimately decided the case against O.J. Simpson had the following characteristics:

  • All twelve were Democrats.

  • Two were college graduates.

  • Not one juror read a newspaper regularly.

  • Nine lived in rented homes; three owned homes.

  • Two had supervisory or management responsibilities at work; ten did not.

  • Eight regularly watched television-tabloid news shows like Hard Copy. (Vinson’s polling data had found a predilection for the tabloids a reliable predictor of belief in Simpson’s innocence.)

  • Five said they or a family member had personally endured a negative experience with law enforcement.

  • Five thought it was acceptable to use force on a family member.

  • Nine—three quarters of the jury—thought O.J. Simpson was less likely to have murdered his wife because he had excelled at football.

  The final group included one African-American man; one Hispanic man; two white women; and eight African-American women.

  On the whole, Marcia Clark was pleased, especially with the alternates. She and Bill Hodgman didn’t even exercise all twen
ty of their peremptory challenges.

  11. THE DREAM TEAM

  John Tobin was seventy-two years old and ailing in 1960, but his reputation as a criminal defense lawyer still towered in Massachusetts. That year, as was customary, Tobin was retained in the headline murder case of the day—the killing of Betty Edgerly, a Lowell housewife. Her body had been scooped out of the Merrimack River in pieces, and her grisly demise had given the crime its nickname: the Torso Murder. Her husband, George, was charged with the crime.

  The key evidence against George involved a polygraph examination, and John Tobin knew nothing about the new and evolving science of “lie detection.” He asked around for an expert, and all he could come up with was the name of a recent law school graduate by the name of Francis Lee Bailey.

  Bailey was just twenty-seven years old at the time, the son of a struggling advertising man and a nursery-school teacher. His parents had sent him to prep school and then on scholarship to Harvard, where he drifted on “gentleman’s C’s” until the United States Navy summoned him for active duty. Bailey trained as a fighter pilot, and developed a lifelong obsession with flying and owning his own planes. As a secondary assignment, Bailey joined his unit’s legal office, which transformed his life even more than flight school. He worked as a sort of jack-of-all-trades in the military justice system—trading roles as prosecutor, defense lawyer, investigator, and judge. Bailey developed a specialty in the use of the polygraph, a machine that has always been more favored in the military than in civilian life. When he went to Boston University for law school, Bailey refined his expertise with the polygraph when he moonlighted as an investigator for lawyers preparing for trials. He was still running his little investigation business when he passed the bar examination in November 1960, just a few weeks before he heard from John Tobin.