Simpson had hired Cochran as a trial lawyer, and the trial was fast approaching. How could Cochran remain number two? He couldn’t—and the implications made Shapiro squirm. In a bid to forestall the inevitable, Shapiro made a final effort to keep control of the case in the only way he knew how.
One afternoon late in the jury selection process, Bailey and Kardashian were talking with Simpson in the tiny lockup beside Judge Ito’s courtroom. Shapiro joined them and said he had just spoken to the prosecutors. He said that he now understood their theory of the case. “The prosecutors think that you were mad at Nicole because she didn’t invite you to dinner at Mezzaluna with the kids,” Shapiro told Simpson. “They think you sat around your house getting pissed off, then went over to Nicole’s, probably with the idea of slashing the tires on her car. There was some sort of confrontation at the house, and you killed her. Then Goldman showed up.”
The lawyers and their client listened to Shapiro’s summary without comment.
“So,” Shapiro went on, “that leaves room for manslaughter. And Bob [Kardashian] would have to account for the knife, but that’s probably no more than five years for accessory after the fact.”
There was stunned silence—incredulity that Shapiro would propose a plea bargain at this late date. But cutting deals was Shapiro’s specialty, and making one now was the only way for him to remain in charge of the case. Simpson did not reject the proposal so much as ignore it. The conversation simply moved on to other topics.
With this final gambit, Shapiro ignored his own lessons about the importance of deference to celebrity clients. There was no logical reason to suggest a plea at that moment. The Fuhrman issue had poisoned the racial atmosphere surrounding the trial in a way that could only help the defense. Thanks to Cochran, jury selection seemed likely to produce a politicized, pro-defense panel. By proposing that Simpson agree to plead guilty to anything—at a time when O.J.’s outright acquittal was more likely than ever—Shapiro alienated his client beyond measure (likewise Kardashian, Simpson’s most loyal courtier). Shapiro’s prompt departure from leadership of the case became, at that moment, inevitable.
The impending end of his reign as lead defense counsel led Shapiro into increasingly erratic behavior. In early December, he sent several reporters who were covering the case (including me) a gift. It was a large bottle of men’s cologne; the brand, D.N.A. News of the gift promptly leaked, of course, and virtually all the reports stressed the inappropriateness of the gesture. (Like many of the reporters, I sent mine back with a polite note.) Even Shapiro’s friend Michael Klein was appalled. Klein told him, “Bob, don’t you realize that two people are dead in this case?”
Klein also figured in another bizarre Shapiro episode. Later in December, Shapiro decided to take his wife and two sons to Hawaii for a brief vacation. Klein set up the trip through United Airlines, where he had high-level connections. The day before Shapiro’s scheduled departure, the lawyer called Klein in a panic. He demanded that Klein change his reservations to a pseudonym: Tony DiMilo. Klein didn’t understand the need for secrecy. All the while wondering about his friend’s stability, he agreed to put through the change. It was a pointless formality, of course, for Shapiro was instantly recognized both on the plane and at his hotel. While in Hawaii, Shapiro also put in a strange phone call to Bailey. Still hoping to salvage control of the case, Shapiro beseeched Bailey, “You gotta get Johnnie to back off.”
Bailey was noncommittal to Shapiro, but he would tell Cochran no such thing. A savvy political creature himself, Bailey saw that Shapiro had at this point no chance of remaining in charge. Indeed, Bailey had spent much of the fall cultivating Cochran so that he, Bailey, would be able to carve out a significant role at the trial. Almost in passing during this long conversation from Hawaii, Shapiro mentioned Bailey’s financial status in the case. This is always a prickly subject among lawyers, and Bailey’s arrangement had been conspicuously vague for several months. But Bailey had had other business and his time commitment to Simpson had been modest, so he hadn’t pressed for a resolution of the issue. Still, Bailey was not prepared for what Shapiro told him from Hawaii: “You know you’re a volunteer, right?”
Bailey was, though he didn’t know it. Shapiro’s retainer agreement with Simpson was contained in a letter dated August 24, 1994. (Shapiro never showed this agreement to Bailey.) “Dear O.J.,” the letter read. “You will compensate me for my personal legal services through the end of the … trial in the sum of $1,200,000, payable as soon as reasonably possible, but no later than in monthly installments of not less than $100,000.” The letter went on to state, “You will not be responsible for any additional payment of fees for legal services performed by … F. Lee Bailey, which shall be my responsibility, if any.” (Cochran’s separate agreement called for a fee to him of $500,000.) Bailey knew none of this at the time. Nor could he know, of course, that once Shapiro’s role in the trial was reduced, he would stop receiving the monthly checks, and that he would ultimately receive only about $700,000 from Simpson, plus expenses.
At the time of the phone call, Bailey was enraged by Shapiro’s presumptuous reference to his status, not to mention the status itself. Bailey was in the Simpson case more for ego gratification than for money, but he found Shapiro’s treatment of him demeaning. (Bailey later negotiated a modest retainer agreement of his own with Skip Taft, O.J.’s business manager.) In this phone call from Hawaii, Shapiro succeeded only in alienating Bailey, an erstwhile ally. It would soon become clear that Shapiro had no allies left.
As part of his effort to ingratiate himself with Cochran, on December 21 Bailey sent Cochran a thirteen-page single-spaced memorandum as “a preliminary effort—i.e. a ‘first cut’—to bring the preferred trial strategies and tactics in the forthcoming trial into focus.” The memo, which turned out to be remarkably prescient, laid out a number of defenses to be used at the trial. They included “Demeanor Evidence”—proof that Simpson was the usual “relaxed, happy, affable O.J.” before his trip to Chicago; once he learns of the murder, “his affect reverses.” There was also the “Time Line” defense, “to demonstrate that at no time is there a ‘window’ of fifteen or more minutes when O.J. could have snuck off and committed the crime.” About the time line, Bailey wrote, “Properly orchestrated, this can be a powerful garden in which reasonable doubt can grow and flourish.” There was also “Lack of Motive”—no reason why Simpson “would butcher the mother of the two small children he adored,” especially “in light of his manifest equanimity when confronted … with Nicole’s sexual expeditions.”
In sum, Bailey wrote, the evidence in the case “warrant[s] a demeanor of controlled indignance.… This ought not to be a polite request to the jury, but a formal demand supported by a foundation of appropriate righteousness.… The manner in which the investigation in this case was botched from beginning to end—including protection and preservation of the crime scene, intervention of the medical team, letting the Bronco sit about for all to enter, delaying the blood testing unconscionably, and ‘salting’ the blood evidence to incriminate O.J.—will be described by historians as a blight on the face of justice.” In a footnote to this peroration, Bailey showed just how well he understood the case. “None of the above will have much value,” he wrote, “unless and until it is translated into the ‘Downtown’ dialect by our able colleague Cochran; given the makeup of the jury, he would probably be very effective at delivering his translation himself.”
Pat McKenna had only the residue of an unpleasant divorce to return to in Florida so, unlike McNally, he decided to stay on in Los Angeles, even with a pay cut. He and Harris did take a brief Christmas vacation, and when they returned to Shapiro’s office on January 4, 1995, they sensed a distinct chill from Shapiro’s secretary, Bonnie Barron. McKenna gave her a hug, as was his custom, and Barron kept her hands at her sides. Harris and McKenna were still puzzling over Barron’s reaction to them when, later that night, they were having a drink at the Bel Age Hotel. As they w
ere chatting, Harris’s cellular phone rang. The caller was Kristin Jeannette-Meyers, an energetic reporter who was covering the defense team for Court TV. Harris listened for a moment. A big grin spread across his face, and then he started repeating the same phrase over and over again:
“Oh my God. Oh my God. Oh my God.”
When Harris handed the phone to McKenna and he heard what Jeannette-Meyers was saying, McKenna reacted the same way. This was why Barron was upset.
Jeannette-Meyers was reading them a column by Mike McAlary from that day’s New York Daily News headlined VAIN SHAPIRO DESERVES HIS FATE. It began, “He has spent a year fooling the nation, this lawyer. He has made them all believers: that he is a heroic, hard-working lawyer in the hunt for a grand, fantastic verdict. Unfortunately, Robert Shapiro is your typical Hollywood invention—a character only tan-deep in makeup and significance.”
The column was filled with details known only to a handful of insiders. It mentioned how Shapiro had recently taken a vacation in Maui, to which he flew first-class and his kids traveled coach, and had registered at the Grand Wailea Hotel under the alias Tony DiMilo. “Unlike Venus,” McAlary quipped, “this statue is headless.” McAlary observed that Shapiro “has amazed members of the defense team with his unfamiliarity with the facts.” Shapiro thought, for example, that on the night of the murders Ron Goldman had walked from his waiter’s post at Mezzaluna to Nicole’s house, when in fact he drove a borrowed car. The story went on to detail Shapiro’s vanity, in particular how he had hired an extra secretary to clip stories about him out of newspapers. (The designated clipper was actually Petra Brando, daughter of Marlon and sister of Shapiro’s onetime client Christian.) McAlary’s story concluded by explaining how Shapiro had recently decided to cut back on defense team expenses: “From his first-class plane seat, Shapiro phoned the office and fired one of the secretaries he hired with O.J.’s money to snip the name Robert Shapiro out of newspapers.”
After hearing the column read to them, McKenna and Harris had no doubt about what to do next. Still using Harris’s cellular phone, they dialed John McNally in New York. Chuckling, McKenna asked McNally, “You crazy fuck, how could you give that shit to the papers about Shapiro?”
McNally laughed right back at him. “Fuck him,” McNally said. “He’s an asshole anyway. And besides, he still owes me money.”
McAlary’s column prompted no laughter from Bob Shapiro. He had been stewing for weeks, torn by conflicting emotions about his role in the case. On the one hand, he loved his newfound social prominence, and he reveled in the attention he received at restaurants and public occasions. When, over the summer, the big-screen video projector at the Rose Bowl focused on him during a Rolling Stones concert, Shapiro waved his arms with delight and the crowd cheered. But it also galled Shapiro that the press sniped at his many public appearances. On December 25, 1994—just before McAlary’s column ran—a gossip column in the Los Angeles Times sniffed that Shapiro “goes to the opening of every (bleep)ing door.” Simpson himself had taken note of Shapiro’s high public profile and asked him to lower it. Shapiro complied, but the instruction irritated him and enraged his wife, Linell, who relished their nights out together.
The McAlary column attacked Shapiro’s refined sense of his own dignity. Furious, he asked Bill Pavelic to conduct a secret investigation to see who had leaked the inside information, and Pavelic quickly came back with the predictable report that it was McNally. Rather than blame McNally, Shapiro fixated on Bailey, whom he held responsible for the investigator’s hostility. So Shapiro decided to strike back in similar terms. He leaked word to Newsweek’s Mark Miller that he was no longer speaking to his old friend Bailey. In the issue that was released on Sunday, January 15, 1995, Miller broke word of the breach in the defense camp. The Newsweek report stated that an unnamed defense source (obviously Shapiro) believed that “Bailey-inspired ‘saboteurs on our own team’ have been working to destroy [Shapiro’s] credibility and reputation through leaks to the media.”
David Margolick, the New York Times reporter covering the case, followed up by calling Shapiro that Sunday. This time Shapiro agreed to go on the record. Margolick wrote on January 16 that “an extraordinary and apparently irreparable break has developed between” Shapiro and Bailey. Margolick quoted Shapiro as saying, “The landmark word to me is ‘loyalty.’ I felt a lifelong commitment to him because he gave me the opportunity to represent him when his professional reputation was at stake. But recent events have been so painful that we’ll never be able to have a relationship again.” Shapiro told Margolick that he hoped Bailey would leave the defense team. “His presence before this particular jury adds nothing that can’t be done by Johnnie and others on the team.” But as for the final word on whether Bailey stayed or went, “I’m leaving that decision to Mr. Cochran.” When the Los Angeles Times joined in the next day, Shapiro was even more scathing. “We can’t have snakes sleeping in the bed with us,” he said.
Cases involving multiple defense lawyers invariably generate internal tensions, but Shapiro’s public attack on a colleague was unprecedented. (Shapiro was on the warpath privately, too. He insisted that his friend Michael Klein evict Bailey as his houseguest, and Klein, with some embarrassment, did so.) As much as anyone on the defense team, Shapiro understood the importance of public relations. At this moment, on the eve of opening statements, the only priority should have been to stress Simpson’s innocence, or at least the weaknesses in the government’s case. Instead, with his client’s freedom for the rest of his life on the line, Shapiro shifted the focus to his own complaints—to O.J.’s clear detriment. In times of crisis—as during his press conference after Simpson disappeared on June 17—Shapiro invariably placed his own interests above those of his client. Worse yet, his grievances with Bailey were largely unjustified. While McNally had indeed attacked Shapiro in the press, Bailey himself was innocent of this kind of chicanery. In response to Shapiro’s tirades, Bailey knew that he had to take the high road. In a statement released through his office, Bailey said only that he “declined to disparage Mr. Shapiro in any way. This case is not about Mr. Shapiro or Mr. Bailey. It is about O.J. Simpson.”
The controversy ended the only way it could: Simpson demanded that all his attorneys meet him at the jailhouse and end all public feuding. “I played football with plenty of guys I didn’t like,” Simpson told them, “but it was a team and we got along. Your job is to get along.”
On the morning of Wednesday, January 18, the lawyers met at Cochran’s office shortly after seven. Roosevelt Grier, the minister and former football star, was there, and he approached Shapiro. “I’ve looked into this situation, and I believe that Brother Bailey is innocent of what you think he did to you,” Grier said. “I believe you should apologize to him.” Now completely alone on the defense team, Shapiro had no choice but to utter a few perfunctory words of contrition to Bailey. Also in response to Grier’s suggestion, Shapiro and Bailey arrived at the courthouse together. Press reports said that the two men had arrived “arm-in-arm,” and that was, at some level, technically true. As they left Shapiro’s car, Bailey placed his hand on Shapiro’s wrist. For a moment, Shapiro regarded Bailey’s hand as one might look upon a putrid fish. Shapiro did not exactly recoil, but he marched down the steps to the door with a cross between a smile and a grimace on his face.
After court that day, the lawyers returned to the lobby for a news conference. Cochran—now clearly the leader of the defense team—stood between Bailey and Shapiro, and he beamed while announcing that the defense was a united front. “The Dream Team is never going to break up,” Cochran proclaimed. Shapiro, looking pained, nodded dutifully. Asked about the controversy, Bailey said simply, “That’s history.” The unity tableau was marred only by the presence—in the background, behind the first-string lawyers—of Cochran’s young associate Shawn Chapman and Shapiro’s junior colleague Sara Caplan. Every time the lawyers told the reporters that the feud was over, history, forgotten and unimportant �
�� the two underlings, who had enjoyed front-row seats to the diatribes, started to laugh.
Shapiro sulked. In court, he sat at the opposite end of the defense table from Bailey, and for the next nine months the two men did not exchange a word. Outside the Criminal Courts Building, Shapiro’s petulance took another form. Slowly but inexorably, he began broadening the circle of people to whom he told his true feelings about his client. From the start of Shapiro’s representation, his wife, Linell, had never had any compunction about sharing her views at social gatherings: “Guilty, guilty, guilty.” Both inside and outside the defense-team offices, particularly as the racial polarization about the case intensified, Shapiro decided to prove his kinship with the West Los Angeles world that meant so much to him. Their view of the case was his, too. “Of course he did it,” Shapiro would say.
For his part, Bailey, who never worried too much about any client’s guilt or innocence, just wanted to return to the big time. Indeed, one irony of Shapiro’s attack on Bailey is that it was launched before Bailey had uttered a single word in Judge Ito’s courtroom.
In the last legal argument before opening statements, Bailey would finally speak in that court for the first time. Prosecutors had urged Ito to let them introduce evidence of Simpson’s pattern of domestic violence against Nicole as proof that he murdered her. This was an important controversy for Ito to resolve, but in a rather minor sideline to the main issue, prosecutors called to the stand a Canadian expert to testify about domestic violence in general. Late on a sleepy Thursday afternoon, Bailey rose to cross-examine Dr. Donald Dutton of Vancouver.
The Run of His Life Page 26
